Andhra Pradesh High Court - Amravati
Kakarlapudi Satyanarayana Raju vs The State Of Andhra Pradesh, on 4 November, 2022
Author: Prashant Kumar Mishra
Bench: Prashant Kumar Mishra
IN THE HIGH COURT OF ANDHRA PRADESH: AMARAVATI
HON'BLE Mr. JUSTICE PRASHANT KUMAR MISHRA, CHIEF JUSTICE
AND
HON'BLE Mr. JUSTICE D.V.S.S. SOMAYAJULU
W.P.Nos.32956, 33034 of 2015; W.P.No.8639 of 2016
and W.A.No.852 of 2016
COMMON ORDER:
Dt.04.11.2022 (Per Prashant Kumar Mishra, CJ) As these writ petitions and writ appeal involve common issues, they are heard analogously and being disposed of by this common order.
2. W.A.No.852 of 2016 arises out of the interim order dated 25.01.2016 passed by the learned single Judge in W.P.M.P.No.42434 of 2015 in W.P.No.32879 of 2015. Other connected writ appeals are disposed of by separate common judgment dated 09.11.2021. However, W.A.No.852 of 2016 was kept pending because the material papers necessary to be referred in the course of hearing are available in this writ appeal.
3. W.P.No.32956 of 2015 and W.P.No.8639 of 2016 challenge acquisition of petitioners' land by Preliminary HCJ & DVSS, J W.P.Nos.32956, 33034 of 2015;
-2- W.P.No.8639 of 2016 & W.A.No.852 of 2016 Notification No.2315/2015/G3, dated 31.08.2015, issued by the 2nd respondent, District Collector, Vizianagaram District, by declaring the same as illegal, arbitrary, void ab initio in view of lapse of lapse of Ordinance No.5 of 2015, with a further prayer to suspend the Notification during pendency of the writ petitions. Similar prayer for quashing of Preliminary Notification No.2314/2015/G3, dated 31.08.2015, was initially made in W.P.No.33034 of 2015. However, by amending the prayer clause, petitioners have questioned the constitutional validity of A.P. Amendment Act (Act No.22 of 2018), i.e. the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement (Andhra Pradesh Amendment) Act, 2018.
4. A batch of writ petitions was filed challenging the subject land acquisition notifications. However, in all the cases except the present three writ petitions, the matter was settled amicably between the parties and the affected petitioners have received the compensation, rendering the writ petitions infructuous, as has been recorded by this Court in the docket order dated 03.09.2021.
HCJ & DVSS, J W.P.Nos.32956, 33034 of 2015;
-3- W.P.No.8639 of 2016 & W.A.No.852 of 2016
5. Challenge in all these matters is to the notification to acquire land for establishment of an airport at Bhogapuram, Vizianagaram District. The Government of India with a view to upgrade and modernise the airport infrastructure, promulgated the Policy on Airport Infrastructure 1997 with the objective of development of airport infrastructure by encouraging private sector involvement. In furtherance of the policy, the Government of Andhra Pradesh proposed to establish a greenfield international airport near Visakhapatnam city since the existing airport in Visakhapatnam is a Defence Airport under the control of the Ministry of Defence, Government of India, experiencing operational constraints and lack of scope for its expansion to meet the requirements of an international airport standards. For this purpose, respondent No.7, i.e. Andhra Pradesh Airports Development Corporation Limited, was constituted. The State Government also engaged M/s. RITES Ltd., a Govt. of India enterprise, to study the technical feasibility, suitability of land and preparation of plan, which, in turn, submitted report finding Bhogapuram as the most appropriate place for establishment of a greenfield international airport. To HCJ & DVSS, J W.P.Nos.32956, 33034 of 2015;
-4- W.P.No.8639 of 2016 & W.A.No.852 of 2016 facilitate construction of airport, the State of Andhra Pradesh decided to acquire about 5311 acres of land by issuing Memo No.512/Airports/A/2015, dated 31.08.2015, instructing the District Collector to notify the land for acquisition.
6. The Government of India issued Ordinance No.5 of 2015 proposing certain amendments to the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation & Resettlement Act, 2013 ("the LA Act, 2013", for brevity). As per the said Ordinance, Section 10 of the LA Act, 2013 was amended by introducing Section 10A and brought into force with retrospective effect from 01.01.2014. The Ordinance was valid till 31.08.2015. The District Collector issued Rc.No.30/20212/G3 dated 31.08.2015 exempting Chapter II & III of the LA Act, 2013 and published the same in the District Gazette No.298/2015/A8 on 31.08.2015 and, thereafter, issued land acquisition notification, which is sought to be challenged in these petitions. Although the initial proposal was for acquisition of about 5311.88 acres of land, land requirement was subsequently reduced to an extent of 2004.54 acres only for phase 1 of the development of airport and airport related HCJ & DVSS, J W.P.Nos.32956, 33034 of 2015;
-5- W.P.No.8639 of 2016 &
W.A.No.852 of 2016
activities besides 119 acres for approach roads. Initially,
large number of landowners falling within the alignment of the proposed airport challenged the acquisition proceedings. However, majority of the petitioners voluntarily consented to the acquisition by receiving the compensation and withdrawing writ petitions. As per the stand of respondent No.7-Corporation, barring about 37 acres belonging to writ petitioners 11 and 13 of W.P.No.33034 of 2015, entire extent of land falling within the alignment of the said airport project has already been acquired and the landowners have accepted the amount of compensation and submitted consent affidavit for withdrawal of writ petitions. Thus, out of total land required for the project, only 37 acres of land is in present litigation and the rest of the lands are in possession of respondent No.7 free from all encumbrances.
7. According to the petitioners, the LA Act, 2013 is a complete departure from the procedure provided under the Land Acquisition Act, 1894. In the new Act, there are safeguards available to the land-losers as a matter of right, which includes under Chapter II "Determination of social impact and public purpose - Preliminary investigation for HCJ & DVSS, J W.P.Nos.32956, 33034 of 2015;
-6- W.P.No.8639 of 2016 & W.A.No.852 of 2016 determination of social impact and public purpose" and under chapter III "Provision to safeguard food security" by prohibiting acquisition of agricultural land. The Act also provides for rehabilitation as well as resettlement of the land- losers in an adequate form by providing benefits under the Act. Ordinance No.9 of 2014 came into effect from 31.12.2014, by which amendment was made to the Principal Act by inserting Section 10A, under which the appropriate Government was empowered to issue notification exempting the provisions of Chapter II and Chapter III for the projects referred therein. The Project includes "projects vital to national security defence of India; rural infrastructure including electrification; affordable housing and housing for the poor people; industrial corridors; and infrastructure and social infrastructure projects". Thus, the social impact study provided under Chapter II and protection of food security provided under Chapter III can be exempted by the appropriate Government by issuing notification in the public interest and the State can straightaway initiate acquisition process under Section 11 of the LA Act, 2013. The President of India again promulgated another Ordinance, i.e. Ordinance HCJ & DVSS, J W.P.Nos.32956, 33034 of 2015;
-7- W.P.No.8639 of 2016 & W.A.No.852 of 2016 No.4 of 2015, making further amendments to the Principal Act, including amendment to Section 10A of the LA Act, 2013 further expanding the scope of Section 10A for the purpose of exemption under Chapter II and Chapter III of the Principal Act. This Ordinance saved the actions taken under the Principal Act as amended by Ordinance No.9 of 2014. The President of India issued third Ordinance, i.e. Ordinance No.5 of 2015 by reproducing the contents of Ordinance No.4 of 2014, with effect from 01.12.2014. This Ordinance also saved the actions taken under Ordinance No.4 of 2015. Ordinance No.5 of 2015 remained in operation till 31.08.2015, when it was allowed to be lapsed.
8. Mr. A. Satya Prasad, learned senior counsel for the petitioners argued that under Section 5 of Ordinance No.9 of 2014, the Union of India exempted application of Chapter II and Chapter III to four categories of projects subject to ensuring bare minimum extent of land for the project. The ownership of land acquired continues to remain with the Government and the said position continued by issuing another Ordinance No.4 of 2015 dated 03.04.2015 with retrospective effect from 31.12.2014 and yet again by issuing HCJ & DVSS, J W.P.Nos.32956, 33034 of 2015;
-8- W.P.No.8639 of 2016 & W.A.No.852 of 2016 Ordinance No.5 of 2015 on 30.05.2015 with retrospective operation with effect from 31.12.2014. It is contended that respondent No.2 published Preliminary Notification No.2314/2015/G3 dated 31.08.2015 in Sakshi and Eenadu daily newspapers under Section 11(1) the LA Act, 2013 read with Section 19(1) of the Andhra Pradesh Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Rules 2014 ("the Rules, 2014", for brevity) proposing to acquire the land in villages of Gudepuvalasa, Kancheru, Amatam Ravivalasa, Kongavanipalem, Munjeru, Savaravalli, Kancherupalem, Kavulavada and Ravada villages of Bhogapuram Mandal for establishing a Green Field Airport and invited objections under Section 15 of the LA Act, 2013. The respondent No.2, on 29.01.2015, under Section 10A, inserted by Ordinance 9 of 2014, exempted the four projects from application of Chapter II and Chapter III. On 20.05.2015, respondent No.1 issued G.O.Ms.No.63 (Infrastructure & Investment Department) dated 20.05.2015, to establish an SPV "M/s. Bhogapuram International Airport Company Ltd., a 100% government owned company with an option to transfer majority share to HCJ & DVSS, J W.P.Nos.32956, 33034 of 2015;
-9- W.P.No.8639 of 2016 & W.A.No.852 of 2016 successful bidder of the project. Respondent No.2 also issued Notification No.30/2012/G3 dated 31.08.2015 published in District Gazette exempting application of Chapter II and Chapter III of LA Act, 2013 and further published Preliminary Notifications on the same day, i.e. 31.08.2015.
9. Based on the above background events involving amendment of the LA Act, 2013 and issuance of land acquisition notifications, it is vehemently argued by the learned senior counsel that petitioners cannot be deprived of their property without authority of law; the respondents did not comply with the provisions of the LA Act, 2013 and, more particularly, failed to obtain 'prior consent'; respondents failed to conduct social impact assessment study and food security issues under Section 2(2) of the first proviso, Section 3(e), Section 3(v), Chapter II and Chapter III. Respondent No.2 is bound to issue notification in terms of Section 3(v) and as 'appropriate government' in terms of Section 3(e) of the LA Act, 2013 and cannot exempt or ignore the same.
10. It is also argued that the impugned notifications exempted application of Chapter II and Chapter III based on Ordinance No.9 of 2014, Ordinance No.4 of 2015 and HCJ & DVSS, J W.P.Nos.32956, 33034 of 2015;
-10- W.P.No.8639 of 2016 & W.A.No.852 of 2016 Ordinance No.5 of 2015, which are void ab initio as the said Ordinances lapsed without saving the actions. He refers to Article 123 of the Constitution of India and argues that Ordinance No.5 of 2015 contained saving clause saving acts done under Ordinance No.4 of 2015, but did not contain any saving clause to save acts committed under Ordinance No.5 of 2015; thus, the impugned notifications are not saved and they are illegal, as the same have been issued without compliance of Chapter II and Chapter III of the LA Act, 2013. It is argued that once Ordinance No.5 of 2015 stands lapsed, entire action taken under any of the above-referred Ordinances stood lapsed due to absence of saving clause under Ordinance No.5 of 2015. Referring to the decision in D.C. Wadhwa v. State of Bihar, reported in (1987) 1 SCC 378 and Krishna Kumar Singh v. State of Bihar & others, reported in 2017 SCC OnLine SC 10, it is put forth that re- promulgation of Ordinances is fraud on the Constitution and is subversion of democratic legislative process.
11. It is further argued that State's submission that consent awards have been passed qua 2064 acres belonging to 1937 owners, paying compensation amount of Rs.678 crore, HCJ & DVSS, J W.P.Nos.32956, 33034 of 2015;
-11- W.P.No.8639 of 2016 & W.A.No.852 of 2016 is ill-founded, as the same has been criticized by the composite High Court in W.P.No.23148 of 2018 on the ground that there is unequal bargaining power between the landholders and the State.
12. Learned senior counsel next argues that under first proviso to Section 2(2), a condition is imposed that in all cases of public private partnership projects, prior consent of at least 70% of the affected families and also the Gram Sabhas is mandatory and the same has to be obtained before issue of Preliminary Notification as required under Rule 19 of the Rules, 2014; therefore, since admittedly prior consent is not obtained in the present cases, the impugned notifications are vitiated.
13. It is also argued that by virtue of Section 2(a) and Section 10A of the LA Act, 2013, in all cases of land acquisition for public private partnership, the ownership of the land acquired should vest continuously with the Government and the same is also prescribed as mandatory pre-condition to avail exemption under Chapter II & Chapter III. However, both the provisions have been violated invalidating the notifications exempting Chapter II and Chapter III under HCJ & DVSS, J W.P.Nos.32956, 33034 of 2015;
-12- W.P.No.8639 of 2016 & W.A.No.852 of 2016 Section 10A as well as the Preliminary Notifications dated 31.08.2015. Buttressing the submission further, it is stated that the acquired land has been given to the SPV whose control ultimately is with a private company under public private partnership (PPP) mode resulting in absolute control and trappings of ownership of the land not retained by the Government. Thus, even the exemption from application of Chapter II and Chapter III of LA Act, 2013 has not been availed in accordance with law; hence, requiring compliance of social impact assessment study and food security issues as mandatory.
14. It is next argued that the pre-condition of ensuring bare minimum extent of land required for the project has not been complied with to avail exemption inserted under Section 10A. It is further argued that publication of notifications in the Gazette of the State is mandatory. However, in the present case, Preliminary Notification has been issued in the District Gazette, which is illegal being not in conformity with law. Learned senior counsel refers to the law laid down by the High Court of Madras in A.S. Periasamy v. State of Tamilnadu, reported in 2003 SCC Online Mad 634 and Tamilnadu HCJ & DVSS, J W.P.Nos.32956, 33034 of 2015;
-13- W.P.No.8639 of 2016 &
W.A.No.852 of 2016
Housing Board v. DPF Textiles reported in
Manu/TN/4695/2017. He would also refer to the decisions of the Hon'ble Supreme Court in K. Dayanandalal & others v. State of Kerala, reported in (1996) 9 SCC 728 and ITC Badrachalam Paper Boards v. M.R.O., reported in (1996) 6 SCC 634.
15. It is also argued that the District Collector has no authority to issue Preliminary Notification and other Notifications under Section 11 and Section 10A of the LA Act, 2013. According to the learned senior counsel, the appropriate Government to issue such notification is the State Government, because there is no delegation of that power to the District Collector, as required under Section 3(e) of the LA Act, 2013. He would further argue that until a separate notification is issued prescribing limit, i.e. maximum extent of land for which the District Collector could issue notification, a general rule would not enable the District Collector to issue the Preliminary Notifications. Thus, the impugned notifications are without jurisdiction.
16. It is also argued by him that identification and segregation of land for the purpose of the present land HCJ & DVSS, J W.P.Nos.32956, 33034 of 2015;
-14- W.P.No.8639 of 2016 & W.A.No.852 of 2016 acquisition is arbitrary and violative of Article 14 of the Constitution of India, inasmuch as the land belonging to politicians and influential persons has been excluded and land of the petitioners and other poor landowners has been subjected to acquisition.
17. Challenging the validity of A.P. Amendment Act (Act No.22 of 2018) as being unconstitutional for violating Article 254(2) of the Constitution of India, it is argued by the learned senior counsel that the A.P. Amendment Act inserts the same text, content, pith and substance of Ordinance No.9 of 2014, Ordinance Nos.4 and 5 of 2015. Admitting that the Hon'ble President of India has accorded "Assent" to A.P. Amendment Act (Act No.22 of 2018), it is contended that the said assent is mechanical and empty formality, as neither the State Government nor the Union of India has pointed out the circumstances to the Hon'ble President of India about the repugnancy and reasons for having such a law despite the lapse of the Ordinances. Reference is made to the decision of the Hon'ble Supreme Court in Kaiser-I-Hind Pvt. Ltd. v. National Textile Corporation, reported in (2002) 8 SCC
182. It is argued that the impugned A.P. Amendment Act HCJ & DVSS, J W.P.Nos.32956, 33034 of 2015;
-15- W.P.No.8639 of 2016 & W.A.No.852 of 2016 (Act No.22 of 2018) is repugnant to the Principal Act and is thus ultra vires Article 254(2) of the Constitution of India. Reference is also made to the decisions of the Hon'ble Supreme Court in Gram Panchayat of Village Jamalpur v. Malwinder Singh and Ors., reported in (1985) 3 SCC 661, Grand Kakatiya Hotel v. Srinivasa Resorts, reported in (2009) 5 SCC 342 and that of Bombay High Court in Basantlal Banarsilal v. Bansilal Dagdulal, reported in AIR 1995 Bom 35.
18. Per contra, Sri S. Sriram, the learned Advocate General, would contend that the petitioners' contention that in the absence of saving clause in Ordinance No.5 of 2015 with the lapsing of the Ordinance, the notification for land acquisition also lapses, is clearly untenable. He would refer to the decision of the Hon'ble Supreme Court in Krishna Kumar (supra) at paragraphs 90, 91 and 94. According to him, the overriding test is one of grave public interest and constitutional necessity, which will subsume the requirements of irreversibility and impracticability. He would submit that an amount of Rs.678 crore has already been paid to the landowners and the land already in possession of the HCJ & DVSS, J W.P.Nos.32956, 33034 of 2015;
-16- W.P.No.8639 of 2016 & W.A.No.852 of 2016 Government is 2064 acres as against 2200 acres meant for airport development. The total number of affected landowners are 1959out of which 1937 landowners have agreed to for consent awards which have since been passed.
19. Referring to the Division Bench judgment of erstwhile High Court of Andhra Pradesh in Gampa Dali Naidu v. State of Andhra Pradesh, reported in 1990 (2) ALT 363, learned Advocate General would submit that publication of the notification in the District Gazette is permissible for the reason that the District Gazette is also published by the State. He also refers to the decision of the erstwhile High Court of Andhra Pradesh in Seethapathi Nageswara Rao & ors v. the Government of A.P. and others, reported in AIR 1978 AP 121 and the decision of the Hon'ble Supreme Court in Waste Products Reclaimor Pvt. Ltd. v. Bharat Cooking Coal Ltd. and others, reported in 1993 SUPP (2) SCC 358.
20. It is also argued that the impugned notifications for acquisition are not vitiated for want of specific notification under proviso to Section 3(e) of the LA Act, 2013 and the State has already notified the respective District Collectors to be the appropriate Government for acquisition of the lands HCJ & DVSS, J W.P.Nos.32956, 33034 of 2015;
-17- W.P.No.8639 of 2016 & W.A.No.852 of 2016 under the statutory Rules in exercise of power under Section 109 of the LA Act, 2013 after compliance with the pre- condition of prior publication under Section 112 of the LA Act, 2013 and the same has already been notified in terms of Section 3(v) of the LA Act, 2013. Rule 2(b) of the Rules, 2014 in substance, is in effectuation of the enablement under the proviso to Section 3(e) of the LA Act, 2013 and that there is substantial compliance with the mandate under the said provision. The defect, if any, in the form of notification or absence of referral to the source of power to Section 3(e) of the LA Act, 2013 does not detract from the substantial compliance to the procedural law prescribed under the Statute and that there is no prejudice suffered by the landowners. It is further submitted that the writ petitioners, particularly, petitioner in W.P.No.33034 of 2015, has participated by filing objections on 19.10.2015 under Section 15 of the LA Act, 2013 which have been disposed of on 29.01.2016 prior to publication of declaration under Section 19 of the LA Act, 2013 on 23.04.2016.
21. It is next contended that Rule 4(2)(b) of the Statutory Rules comprised in G.O.Ms.No.389 dated 20.11.2014 is not HCJ & DVSS, J W.P.Nos.32956, 33034 of 2015;
-18- W.P.No.8639 of 2016 & W.A.No.852 of 2016 ultra vires the proviso to Section 3(e) of the LA Act, 2013 because under the Rules, the District Collector has been conferred with the power of appropriate Government without imposing a limit on the extent of land to be acquired. Reference is made to the decisions of the Hon'ble Supreme Court in Labour Commissioner v. Burhanpur Tapti Mills, reported in 1964 SC 1687, T.R. Sharma v. Prithvi Singh, reported in 1976 (1) SCC 226, Jamatraj Kewalji Govani v. State of Maharashtra, reported in AIR 1968 SC 178 and a judgment of the erstwhile High Court of Andhra Pradesh in Yelamarthi Sarath Kumar v. State of A.P., reported in MANU/AP/0157/2011.
22. Learned Advocate General would further submit that the impugned notification for land acquisition is not vitiated for want of compliance with Section 2(2) of the Principal Act, because Section 3 of the Amending Ordinance as replicated by the State Amendment Act 22 of 2018, provides that the acquisition of land for the projects listed in sub-section (1) of Section 10(A) and the purposes specified therein shall be exempted from the provisions of the first proviso to this sub- section. According to him, the provision of prior consent and HCJ & DVSS, J W.P.Nos.32956, 33034 of 2015;
-19- W.P.No.8639 of 2016 & W.A.No.852 of 2016 the mandate of the first proviso were in the context of the scenario of pre-amended Section 10(A). However, subsequent to the amendment, the obligation of securing consent along with social impact assessment is obviated. The imposition of prior sanction of landowners to be undertaken along with the social impact assessment under Section 2(2) was in the context of inevitable application of Chapter II and Chapter III of the Act for all acquisitions without exception at the time of inception of the Act. However, subsequent to the amendments, there is no duty on the State to conduct a social impact assessment. Reference is also made to the decision of the Hon'ble Supreme Court in Dadi Jagannadham v. Jammulu Ramulu, reported in AIR 2001 SC 2699.
23. It is also argued that there is no violation of Section 10(A) of the LA Act, 2013 and the State has ensured minimum acquisition of the land, inasmuch as initially the State proposed acquisition of 5311 acres of land, but the State constantly applied its mind to the actual requirements of the project and the allied activities and pruned the required extent of land which now is at 2700 acres. Rest of the land initially notified has been de-notified in due course of time. Replying HCJ & DVSS, J W.P.Nos.32956, 33034 of 2015;
-20- W.P.No.8639 of 2016 & W.A.No.852 of 2016 to petitioners' argument with regard to G.O.Ms.No.571 dated 14.09.2012 in respect of requirement of land for the airport, it is submitted by him that the guidelines under the said G.O. are in relation to allotment of Government land to various requisitioning authority, which, in any way, does not serve as a guide in respect of locating an international airport with the size of operations envisaged in the present international airport in a metropolitan region. He would refer to the judgment of the High Court of Judicature at Hyderabad for the State of Telangana and the State of Andhra Pradesh in the matter of Uppada Siva Reddy v. the Union of India and others (PIL No.212 of 2015 dated 31.08.2015) wherein the plea of excess land being acquired for the proposed project at Bhogapuram, was turned down.
24. It is next contended by the learned Advocate General that there is no violation of Section 10(A) of the LA Act, 2013 on the touchstone of vesting of the land in the Government as prescribed under Section 10(A)(1)(e) of the LA Act, 2013. Referring to the concessionaire agreement entered into between the SPV and the successful bidder at Articles 10.1, 10.2 and 42, it is submitted that the said Articles clearly limit HCJ & DVSS, J W.P.Nos.32956, 33034 of 2015;
-21- W.P.No.8639 of 2016 & W.A.No.852 of 2016 the rights of the bidder to right of way, licensed use, regulated access with restriction even on subletting. The ownership is always vested with the Government and there is no transfer of land to the private corporate. Further arguing that on completion of the concessionaire period after the concessionaire agreement, the airport also will be transferred and vested with the Government.
25. Insofar as petitioners' challenge to the constitutional validity of A.P. State Act No.22 of 2018 is concerned, learned Advocate General would submit that challenge to the vires of an enactment ought to be elaborately pleaded, demonstrated as regards lack of competence or any violation of any of the fundamental rights. Reference is made to the decisions in State of Haryana v. State of Punjab and another, reported in (2004) 12 SCC 673 SC and J. Venkateswarlu v. Union of India and others, reported in 2002 (2) ALT
725. It is contended that the Central Act as well as the State Act enacted in terms of Entry 42 of the Concurrent List and the repugnancy is resolved by securing the assent of the Hon'ble President of India under Article 254(2) of the Constitution of India. The contention of the petitioners, in the absence of a HCJ & DVSS, J W.P.Nos.32956, 33034 of 2015;
-22- W.P.No.8639 of 2016 & W.A.No.852 of 2016 foundational pleading that the assent of the President of India, does not satisfy the tests laid down by the Hon'ble Supreme Court in the case of Kaiser-I-Hind Pvt. Ltd. (supra), is factually without any substance and legally untenable. He would refer to paragraphs 74, 75, 94 and 95 of the said judgment.
26. With regard to the challenge to the retrospective operation of the State Act 22 of 2018, it is submitted by the learned Advocate General that the said contention is without any substance and that similar legislations with same effect including with retrospective date, have been upheld by the Gujarat High Court in relation to Gujarat State Amendment Act, 2016 in Jigarbhai Amritbhai Patel v. State of Gujarat and others, reported in MANU/GJ/3564/2019; Karnataka High Court in relation to Karnataka State Amendment Act, 2019 in S. Jalaja v. Union of India, reported in MANU/KA/3945/2021 and the Supreme Court decision in the matter of G. Mohan Rao v. State of Tamil Nadu, reported in 2021 SCC Online SC 440, dealing with Tamil Nadu Amendment to respective enactments exempting the provisions of Act 30 of 2013.
HCJ & DVSS, J W.P.Nos.32956, 33034 of 2015;
-23- W.P.No.8639 of 2016 & W.A.No.852 of 2016
27. Learned Advocate General would contend, in addition, that any alleged irregularities in the process of acquisition in the absence of any cogent pleading or demonstrable evidence, does not vitiate the process of acquisition initiated and concluded in respect of the land under present acquisition. Highlighting the fact that the total extent of land covered in the writ petitions filed before this Court is 1639.83 acres, it is submitted that, thereafter, some of the writ petitioners filed affidavits according their consent to acquisition; thus leaving pending land to be acquired at 89.465 acres in November 2021; subsequently, consent was received for another area admeasuring 52.315 acres, leaving only 37.15 acres of land pending to be acquired as on date. He would submit that High Court being a Court of Equity can mould relief in order to subserve public interest and the State is willing to pay compensation reckoning the market value. He would refer to the decision in Bondu Ramaswamy and others v. Bangalore Development Authority and others, reported in (2010) 7 SCC 129, wherein the Hon'ble Supreme, while dealing with the salutary principle of public interest in higher and large public good securing an affirmation over an HCJ & DVSS, J W.P.Nos.32956, 33034 of 2015;
-24- W.P.No.8639 of 2016 & W.A.No.852 of 2016 individual technical plea of compliance with the provisions of law, moulded the relief accordingly. He would also refer to the decisions in Savitri Devi v. State of Uttar Pradesh and others, reported in (2015) 7 SCC 21, Ramesh Chandra Sankhla v. Vikram Cement Ltd., reported in (2008) 14 SCC 58 and judgment dated 25.02.2021 of this Court in W.A.No.371 of 2020 in the matter of Appasani Babu Rao v. Union of India and others.
28. Based on the above submissions, learned Advocate General would seek dismissal of the writ petitions.
29. Based on the rival submissions raised at the Bar by the learned senior counsel for the petitioners and the learned Advocate General, the following issues would arise for adjudication in this batch of cases:
1. Whether the impugned notifications under Section 11(1) of the LA Act, 2013 would lapse, as the same are not saved after Ordinance No.9 of 2014, Ordinance No.4 of 2015 and Ordinance No.5 of 2015 were allowed to lapse without there being any saving clause?
2. Whether the impugned notifications are bad in law for the same having not been notified in the State Gazette and notified only in the District Gazette?
HCJ & DVSS, J W.P.Nos.32956, 33034 of 2015;
-25- W.P.No.8639 of 2016 & W.A.No.852 of 2016
3. Whether the impugned notifications for acquisition are vitiated for want of specific notification under the proviso to Section 3(e) of the LA Act, 2013?
4. Whether the impugned notifications for land acquisition are vitiated for want of compliance with Section 2(2) of the Principal Act?
5. Whether there is any violation of Section 10A of the LA Act, 2013 in respect of identifying the extent of the land and the land being vested in private entity; if yes, the effect thereof?
6. Whether the A.P. Amendment Act (Act No.22 of 2018), i.e. the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement (Andhra Pradesh Amendment) Act, 2018, is unconstitutional/ultra vires for violating Article 254(2) of the Constitution of India and is not retrospective? Issue No.1:
30. The Parliament has enacted the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013, to ensure, in consultation with institutions of local self-government and Gram Sabhas established under the Constitution, a humane, participative, informed and transparent process for land acquisition for industrialisation, development of essential HCJ & DVSS, J W.P.Nos.32956, 33034 of 2015;
-26- W.P.No.8639 of 2016 &
W.A.No.852 of 2016
infrastructural facilities and urbanisation with the least
disturbance to the owners of the families whose land has been acquired or proposed to be acquired or are affected by such acquisition and make adequate provisions for such affected persons for their rehabilitation and resettlement and for ensuring that the cumulative outcome of compulsory acquisition should be that affected persons become partners in development leading to an improvement in their post acquisition social and economic and for matters connected therewith or incidental thereto.
31. Section 2 of the LA Act, 2013 speaks about Application of the Act relating to land acquisition, compensation, rehabilitation and resettlement, when the appropriate Government acquires land for its own use, hold and control, including for Public Sector Undertakings and for public purpose, and shall include, amongst others, infrastructure projects. Admittedly, the public purpose involved in the present batch of cases, i.e. development of an airport at Bhogapuram, is one of such projects for which acquisition is permissible under the LA Act, 2013. Section 2(2) of the LA Act, 2013 provides that the provisions of the Act relating to HCJ & DVSS, J W.P.Nos.32956, 33034 of 2015;
-27- W.P.No.8639 of 2016 & W.A.No.852 of 2016 land acquisition, consent, compensation, rehabilitation and resettlement, shall also apply when the appropriate Government acquires land for public private partnership projects, where the ownership of the land continues to vest with the Government, for public purpose as defined in sub-
section (1). Clause (ii) of the first proviso to sub-section (2) provides that in the case of acquisition for public private partnership projects, prior consent of at least seventy percent of those affected families, as defined in sub-clauses (i) and (v) of clause (c) of Section 3, shall be obtained through a process as may be prescribed by the appropriate Government; whereas the second proviso provides that the process of obtaining consent shall be carried out along with the Social Impact Assessment study referred to in Section 4. Section 4 speaks about preparation of Social Impact Assessment Study, whereas Section 5 provides for public hearing for Social Impact Assessment; Section 6 mandates publication of Social Impact Assessment; Section 7 speaks about appraisal of Social Impact Assessment report by an Expert Group and, thereafter, Section 8 makes provision for examination of proposals for land acquisition and Social Impact Assessment report by HCJ & DVSS, J W.P.Nos.32956, 33034 of 2015;
-28- W.P.No.8639 of 2016 &
W.A.No.852 of 2016
appropriate Government. Section 9 makes provision for
exemption from Social Impact Assessment, where land is proposed to be acquired invoking the urgency provisions under Section 40. Section 10 speaks about the special provision to safeguard food security.
32. The President of India issued Ordinance No.9 of 2014 introducing, amongst others, Section 10A in the Principal Act, providing the appropriate Government may, in the Public interest, by notification, exempt the following projects from the application of the provisions of Chapter II and Chapter III of the Act, which includes in clause (e), infrastructure and social infrastructure projects including projects under public private partnership where the ownership of land continues to vest with the Government. As the Ordinance could not be converted into an Act of Parliament, another Ordinance being Ordinance No.4 of 2015 introducing similar amendment was promulgated providing in Section 14 thereof that Ordinance No.9 of 2014 is repealed. However, notwithstanding such repeal, anything done or any action taken under the principal Act, as amended by the said Ordinance, shall be deemed to have been done or taken under the principal Act, as amended HCJ & DVSS, J W.P.Nos.32956, 33034 of 2015;
-29- W.P.No.8639 of 2016 & W.A.No.852 of 2016 by this Ordinance. Once again, Ordinance No.4 of 2015 was not made an Act of Parliament and the President of India promulgated another Ordinance, i.e. Ordinance No.5 of 2015 on similar lines as that of Ordinance No.9 of 2014 and Ordinance No.4 of 2015. Section 15 of Ordinance No.5 of 2015 again contained similar repeal and saving clause.
33. According to the learned senior counsel for the petitioners, the last of the Ordinances, viz. Ordinance No.5 of 2015, having been allowed to lapse without the same being made an Act of Parliament, any action taken under the said Ordinance is not saved. According to him, the saving clause in Ordinance No.5 of 2015 saves the action taken under Ordinance No.4 of 2015 and similarly the actions taken under Ordinance No.9 of 2014 is saved under Ordinance No.4 of 2015. However, the same is not applicable when the last Ordinance lapsed without there being any saving clause. It is, thus, put forth that both the notifications issued under Section 10A of the LA Act, 2013, exempting Chapter II and Chapter III and preliminary notifications for land acquisition issued under Section 11(1) of the LA Act, 2013 on the basis of HCJ & DVSS, J W.P.Nos.32956, 33034 of 2015;
-30- W.P.No.8639 of 2016 & W.A.No.852 of 2016 Ordinance No.5 of 2015, are not saved and would lapse forever.
34. The issue as to whether upon an Ordinance ceasing to operate either as a result of its disapproval by the Legislature or on its expiry after the prescribed period of six months of the assembling of the Legislature, all consequences that have ensued would necessarily stand effaced and obliterated, fell for consideration before the Hon'ble Supreme Court in Krishna Kumar Singh v. State of Bihar & others (supra). The Hon'ble Supreme Court, after noticing the expression "cease to operate" does not carry the same meaning as the expression "void", held that an Ordinance which has ceased to operate is not void. As an instrument, it is stillborn and during the tenure of the Ordinance, it has the same force and effect as a law enacted by the Legislature. It is further held that the expression "cease to operate" in Article 213(2)(a) applies both to an Ordinance whose tenure expires after the prescribed period as well as in relation to an Ordinance which is disapproved by the Legislature. The content of the expression cannot, hence, mean two separate things in relation to the two situations. The issue which needs elaboration is whether an HCJ & DVSS, J W.P.Nos.32956, 33034 of 2015;
-31- W.P.No.8639 of 2016 & W.A.No.852 of 2016 Ordinance, which by its very nature has a limited life, can bring about consequences for the future (in terms of the creation of rights, privileges, liabilities and obligations) which will enure beyond the life of the Ordinance. In deciding this issue, the court must adopt an interpretation which furthers the basic constitutional premise of legislative control over Ordinances.
35. After considering its earlier decisions in State of Orissa v. Bhupendra Kumar Bose, reported in 1962 Supp (2) SCR 380, S.R. Bommai v. Union of India, reported in (1994) 3 SCC 1 and T. Venkata Reddy v. State of A.P., reported in (1985) 3 SCC 198, it was held thus in paragraph 94:
"94. The judgment of Sujata Manohar, J. does indicate (as one commentator on the subject States), that the learned Judge "is willing to engage in some form of heightened scrutiny" [ Shubhankar Dam, Presidential Legislation in India at p. 151] . Yet, the threefold test of irreversibility, impracticality or public interest may, if broadly applied, cover almost every situation where an Ordinance has ceased to operate. A demolition may have been effected. An order of conviction may have been passed upon a trial. An acquisition of an industrial HCJ & DVSS, J W.P.Nos.32956, 33034 of 2015;
-32- W.P.No.8639 of 2016 &
W.A.No.852 of 2016
undertaking may be made. Large-scale
regularisation of contractual or casual employees may be effected. Legalisation of unauthorised structures may be made. A myriad different situations can be contemplated. Must every action under an Ordinance produce binding rights, obligations and liabilities which will survive its demise? In our view, in determining the issue the overarching consideration must be the element of public interest or constitutional necessity. Ultimately, it is this element of public interest which would have guided the Court in Bhupendra Kumar Bose [State of Orissa v. Bhupendra Kumar Bose, 1962 Supp (2) SCR 380 : AIR 1962 SC 945] in holding that the validation of an election by an Ordinance should not be set at naught (though the logic adopted by the Court was flawed). Bhupendra Kumar Bose [State of Orissa v. Bhupendra Kumar Bose, 1962 Supp (2) SCR 380 : AIR 1962 SC 945] also raises troubling aspects independently on its facts because in that case a Bill which was moved before the State Legislature to incorporate provisions similar to those of the Ordinance was defeated. Be that as it may, in deciding to mould the relief, the effort of the Court would be to determine whether undoing what has been done under the Ordinance would manifestly be contrary to public interest. Impracticality and irreversibility in that sense are aspects which are HCJ & DVSS, J W.P.Nos.32956, 33034 of 2015;
-33- W.P.No.8639 of 2016 & W.A.No.852 of 2016 subsumed in the considerations which weigh in the balance while deciding where public interest lies. Impracticality cannot by itself be raised to an independent status because it would then be simple enough for the executive to assert the supposed complexities in undoing the effects of an Ordinance. Since the basic constitutional value which is at issue is of parliamentary supremacy and control, the moulding of relief can be justified in cases involving grave elements of public interest or constitutional necessity demonstrated by clear and cogent material."
36. It is, thus, settled that when the act done under a lapsed Ordinance satisfies the threefold test of irreversibility, impracticality or public interest, what is done under the lapsed Ordinance cannot be undone.
37. We shall now proceed to apply the above threefold test to the facts of the present cases to consider and decide as to whether the actions taken under the lapsed Ordinances can be saved or the notifications would themselves lapse for having not complied with the provisions which were exempted under Section 10A of the LA Act, 2013, as introduced by Ordinance No.5 of 2015. In the case at hand, we are dealing with an infrastructure project of huge importance for the State of HCJ & DVSS, J W.P.Nos.32956, 33034 of 2015;
-34- W.P.No.8639 of 2016 & W.A.No.852 of 2016 Andhra Pradesh. Bhogapuram Airport is proposed to be built as an ultramodern international airport catering to the needs of the people of the State of Andhra Pradesh and neighbouring States. Out of approximately 2700 acres notified for acquisition, 2200 acres are meant for construction of airport. Consent awards have already been passed in respect of 2064 acres and an amount of Rs.678 crore has already been paid to the landowners. Out of 1959 affected landowners, 1937 owners have agreed for consent awards and for another 21 landowners, amounts have been deposited with the award. The land already in possession of the Government is about 2064 acres. It was informed to the Court in the course of arguments that except for a patch of 37 acres of land involved in the present batch of cases, the remaining area is available for development of the airport. It is only this batch of cases, which are holding up the project for the last more than seven years. Therefore, applying the threefold test of irreversibility, impracticality and public interest, we have no hesitation in holding that requiring the State to follow the procedures contemplated under Sections 3 to 10 of the LA Act, 2013, would be contrary to public interest, as the same will delay HCJ & DVSS, J W.P.Nos.32956, 33034 of 2015;
-35- W.P.No.8639 of 2016 & W.A.No.852 of 2016 implementation of the project when almost entire land except 37 acres is available for development of the airport. We are, thus, of the considered view that despite lapse of the last Ordinance, i.e. Ordinance No.5 of 2015, the acts done or action taken by issuing notification under Section 11(1) of the LA Act, 2013, would not lapse and the same holds good for the present impugned acquisition.
Issue No.2:
38. It is argued by the learned senior counsel for the petitioners that the impugned land acquisition notifications are published in the District Gazette and not in the Gazette of the State or the Gazette of India, as required under Section 11(1) read with Section 3(v) of the LA Act, 2013 and Rule 19(3) of the Rules, 2014. According to him, notification as mentioned in Section 3(v) of the LA Act, 2013 would mean a notification published in the Gazette of India or the Gazette of a State and the expression "notify" shall be construed accordingly. Thus, in the absence of the notification having been published in accordance with law, the same is illegal and non est. Reference is made to the decision of the Madras High Court in A.S. Periasamy (supra) and Tamilnadu HCJ & DVSS, J W.P.Nos.32956, 33034 of 2015;
-36- W.P.No.8639 of 2016 & W.A.No.852 of 2016 Housing Board (supra) and the judgments of the Hon'ble Supreme Court in K. Dayanandalal and others v. State of Kerala and others, reported in (1996) 9 SCC 728 and ITC Badrachalam Paper Boards (supra). It is further argued that even in the absence of any definition of "Official Gazette"
in the LA Act, 2013, the definition of "Official Gazette" under Section 3(39) of the General Clauses Act, 1897 would apply, which defines Official Gazette to mean Gazette of India or the Official Gazette of a State. Since proper publication is mandatory, non-publication of the land acquisition notification in the State Gazette would make the entire exercise invalid and void ab initio.
39. Per Contra, learned Advocate General has referred to the judgments rendered by a Division Bench of the High Court of Andhra Pradesh in Gampa Dali Naidu (supra) and Seethapathi Nageswara Rao (supra) to contend that publication of the notification in the District Gazette cannot be concluded to be non-compliant with the mandate of the Act and that as per Board Standing Order 193, District Gazette is clearly an Official Gazette of the State. Further, reference is made to Waste Products Reclaimor Pvt. Ltd (supra) to HCJ & DVSS, J W.P.Nos.32956, 33034 of 2015;
-37- W.P.No.8639 of 2016 & W.A.No.852 of 2016 contend that in the absence of any prejudice being caused to the petitioners by reason of non-publication of the impugned notifications in a State Gazette, a technical non-compliance ought not to result in the annulment of the land acquisition proceedings.
40. In A.S. Periasamy (supra), relied on by the learned senior counsel for the petitioners, a learned single Judge of the Madras High Court held that the expression Official Gazette in Central Act means the Official Gazette of the State and cannot mean a District Gazette. Learned single Judge has referred to the Standing Orders of the Board of Revenue relating to acquisition of land for public purpose, wherein Chapter VII Section 7 II (b) provides that the Government will direct the publication of the notification if they approve of the proposed acquisition. The notification should be published only in English in the Fort St. George Gazette. It need not be republished either in English or in the regional language in the District Gazette. Thus, in the case before Madras High Court, there was express bar in the Standing Orders of Board of Revenue that the notification need not be published in the District Gazette. Similar verdict was rendered by a Division HCJ & DVSS, J W.P.Nos.32956, 33034 of 2015;
-38- W.P.No.8639 of 2016 & W.A.No.852 of 2016 Bench of Madras High Court in Tamilnadu Housing Board (supra).
41. In Gampa Dali Naidu (supra), a Division Bench of the High Court of Andhra Pradesh had an occasion to consider as to whether publication of land acquisition notification in the District Gazette is proper compliance of publication of notification under Section 4(1) of the Land Acquisition Act, 1894. According to the petitioners therein, the notification having been issued by the Government, the same ought to have been published in the A.P. Gazette; hence, its publication in the District Gazette is no publication within the meaning of Section 4, inasmuch as District Gazette is not the Official Gazette within the meaning of Section 4. The Division Bench framed an issue as to what is the meaning of "Official Gazette" and "whether the District Gazette is not an Official Gazette". After noticing that the Official Gazette is not defined in the Land Acquisition Act, 1894, resort was taken to Section 3(39) of the General Clauses Act defining the word "Official Gazette" or "Gazette". Thereafter, the Court concluded thus in paragraphs 12 to 14:
HCJ & DVSS, J W.P.Nos.32956, 33034 of 2015;
-39- W.P.No.8639 of 2016 & W.A.No.852 of 2016 "12. It thus appears that publication of both the A.P. Gazette and the District Gazette is an official act.
Both are published by the Authority, though both of them lack statutory basis. A few District Gazettes are placed before us, which show that there is no particular manner in which they are published. Some District Gazettes carry the heading "A P Gazette"
published by authority, indicating further that it is published in a particular district while in some other cases the Gazette carries the heading "District Gazette" with the name of the district prefixed. The sum and substance of this discussion is that District Gazette is as much an 'Official Gazette' as the 'Andhra Pradesh Gazette'. It would not be correct to say that the A P Gazette is the only Official Gazette and that the District Gazette is not an Official Gazette. We must also say that no order or proceeding of the Government has been brought to our notice which says that the notifications issued by the Government should be published in the A.P. Gazette alone, and that their publication in the District Gazette is not valid, or regular. On the contrary, the Printing Manual referred to above expressly provides for publication of Government Orders and Notifications in the District Gazette. We must accordingly hold that the publication of the impugned notification in the Visakhapatnam District Gazette on 29-6-85 is a publication in the Official HCJ & DVSS, J W.P.Nos.32956, 33034 of 2015;
-40- W.P.No.8639 of 2016 & W.A.No.852 of 2016 Gazette, and thus complies with the requirement of Section 4(1)."
"13. This is the conclusion arrived at by a learned single Judge of this Court in Revurl Hymavati v. Govt, of A.P. (2) 1985 (2) ALT 104 (Notes on Recent Cases)."
"14. Learned Counsel for the petitioner (appellant) brought to our notice that A P Act 22 of 1976. which amended the Land Acquisition Act in certain particulars, expressly makes a distinction between "A P Gazette" and 'District Gazette'. The said Act amended certain provisions of the Land Acquisition Act in so far as the Act was invoked for acquisition of land "for the construction, extension or improvement of any dwelling houses for the poor". It provided that where a land is acquired for the said purpose, the notification under section 4(1) can be issued by the District Collector also. In other words, such a notification can either be issued by the Government or by the District Collector. Such a notification can be published In the Official Gazette, or the District Gazette Learned Counsel wants to read the said amendment as providing that where the notification is by the Government it should necessarily be published in the A.P. Gazette and where the notification is issued by the District Collector it can be published in the District Gazette. We are however, unable to infer any such restriction from HCJ & DVSS, J W.P.Nos.32956, 33034 of 2015;
-41- W.P.No.8639 of 2016 & W.A.No.852 of 2016 Section 4(1) as amended by Act 22 of 1976. As amended by the said Amending Act, Section 4(1) of the Land Acquisition act-before it was amended by Central Amendment Act 68 of 1984-read as follows:
"4. Publication of preliminary notification and powers of officers thereupon:
(1) Whenever it appears to the appropriate Government (or the District Collector) that land in any locality is needed or is likely to be needed for any public purpose, a notification to that effect shall be published in the Official Gazette (or the District Gazette), and the Collector shall within 40 days from the date of publication of such notification cause public notice of the substance of such notification to be given at, convenient places in the said locality........"
"We do not think that the above provision is capable of being understood as saying that the District Gazette is not an 'Official Gazette' as suggested by the learned counsel for the appellant. In any event, the acquisition in this case is not one to which A.P. Amendment Act 22 of 1976 is attracted. It must therefore be excluded from consideration when determining the meaning of the expression "Official Gazette", occurring in Section 4(1)."
HCJ & DVSS, J W.P.Nos.32956, 33034 of 2015;
-42- W.P.No.8639 of 2016 & W.A.No.852 of 2016
42. In an earlier decision in Seethapathi Nageswara Rao (supra), a Five Judge Bench of the High Court of Andhra Pradesh had an occasion to consider similar issue wherein the following was held in paragraph 36:
"36. Another comment is that Section 15-A does not provide for individual notices to the members of the society or to society or managing committee before action is taken for amalgamation or liquidation and the general notice provided by publication in the gazette hardly satisfies the requirements of principles of natural justice. It is for the legislature to decide the mode of publication. The District Gazette is an official Gazette and is published under the authority of the Board of Revenue as per its standing orders. B.S.O. 193 in Chapter XVII says that "a monthly official gazette will be published in each district. Detailed rules regarding its printing and issue will be found in the printing manual."
43. We are now faced with divergent views taken by different High Courts, i.e. one by a Single Bench, Division Bench of Madras High Court and other by a Division Bench and Five Judge Bench of the erstwhile High Court of Andhra Pradesh. The decision rendered by the erstwhile High Court of HCJ & DVSS, J W.P.Nos.32956, 33034 of 2015;
-43- W.P.No.8639 of 2016 & W.A.No.852 of 2016 Andhra Pradesh is binding on this Court, whereas the decision rendered by a different High Court has only persuasive value. We, therefore, have no hesitation in following the law laid down by our own High Court, which has clearly held that the District Gazette is an Official Gazette and is published under the authority of the Board of Revenue as per its Standing Order 193, wherein under Chapter XVII, it is provided that "a monthly official gazette will be published in each district. We would, therefore, conclude that publication of the land acquisition notifications in the District Gazette is proper compliance as provided under Section 11(1)(a) of the LA Act, 2013 and the notifications cannot be quashed on this ground. Issue No.3:
44. Section 3(e) of the LA Act, 2013 defines the word "appropriate government" to mean, in relation to acquisition of land situated within the territory of, a State, the State Government with proviso that in respect of a public purpose in a District for an area not exceeding such as may be notified by the appropriate Government, the Collector of such District shall be deemed to be the appropriate Government.
HCJ & DVSS, J W.P.Nos.32956, 33034 of 2015;
-44- W.P.No.8639 of 2016 &
W.A.No.852 of 2016
45. In view of the above definition, petitioners have
contended that in the absence of a specific notification by the appropriate Government, i.e. the State Government determining the area for which the District Collector shall be deemed to be the appropriate Government, delegating the power to the District Collector without specifying the limit is illegal and does not satisfy the requirement of law.
46. Admittedly, the State Government has notified the respective District Collectors to be the appropriate Government for the acquisition of lands under the statutory rules. Rule 2(b) thereof has authorized the District Collector to perform the duties and functions of the appropriate Government for any extent of land. The issue is whether a separate notification is required as is mentioned in the proviso to Section 3(e) or the delegation of powers of the appropriate Government to the District Collector under the Rues, 2014, would be sufficient compliance of the proviso to Section 3(e) of the LA Act, 2013, which are statutory Rules made in exercise of powers under Section 109 of the LA Act, 2013. The same has been issued after compliance with the pre- condition of prior publication as required under Section 112 of HCJ & DVSS, J W.P.Nos.32956, 33034 of 2015;
-45- W.P.No.8639 of 2016 & W.A.No.852 of 2016 the LA Act, 2013. Sub-section (1) of Section 109 provides that subject to the other provisions of the Act, appropriate Government may, by notification make Rules for carrying out the provisions of this Act. If the provision contained under the proviso to Section 3(e) is read in harmony with Section 109(1) and Section 112 of the LA Act, 2013, it can be safely concluded that there is no requirement of a separate notification delegating powers of appropriate Government to the Collector of a District in respect of a particular area. If the Rules themselves which have already been notified enable the District Collector to function as appropriate Government for any extent of land within his District, the same cannot be faulted with in the absence of a separate notification. In our considered view, Rule 2(b) of the Rules, 2014, is in compliance with the proviso to Section 3(e) of the LA Act, 2013 and, as such, there is no violation of the said provision. Accordingly, this argument of the petitioners fails and is rejected.
Issue No.4:
47. It is argued that the impugned land acquisition notifications without obtaining prior consent of 70 percent of HCJ & DVSS, J W.P.Nos.32956, 33034 of 2015;
-46- W.P.No.8639 of 2016 &
W.A.No.852 of 2016
the affected families and conclusion of Social Impact
Assessment Study and Food Securities as required under Section 2(2) of the LA Act, 2013, first proviso read with Rule 19 of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement (Social Impact Assessment and Consent) Rules, 2014 and Chapter II and Chapter III of the LA Act, 2013, are violating Section 11 read with Rule 19 of the Rules, 2014 and are, therefore, invalid. It is further argued that consent was obtained after issuance of Section 19 notification, which does not fulfill the requirement of prior consent as envisaged under Section 2(2) first proviso.
48. On the other hand, learned Advocate General has argued that under Ordinance No.5 of 2015 together with earlier Ordinance No.9 of 2014 and Ordinance No.4 of 2015, the newly introduced Section 10A exempted application of Chapter II and Chapter III of the LA Act, 2013 in case of acquisition of lands for the projects enumerated thereunder. In addition, the A.P. Amendment Act (Act No.22 of 2018) also provided that the acquisition of lands for the projects listed in sub-section (1) of Section 10A and the purposes specified HCJ & DVSS, J W.P.Nos.32956, 33034 of 2015;
-47- W.P.No.8639 of 2016 & W.A.No.852 of 2016 therein shall be exempted from the provisions of the first proviso to this sub-section. Thus, the argument, in substance, is that for the projects of the nature in issue in these cases, non-compliance of Section 2(2) of the LA Act, 2013 would not arise, as the same can happen only when Chapter II and Chapter III apply.
49. Section 2(2) of the LA Act, 2013 provides that for public private partnership projects, prior consent of at least 70 percent of those affected families would be required and the said consent shall be obtained through a process as may be prescribed by the appropriate Government and the same shall be carried out along with Social Impact Assessment Study referred to under Section 4.
50. However, the A.P. Amendment Act (Act No.22 of 2018), i.e. the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement (Andhra Pradesh Amendment) Act, 2018, has inserted the following proviso after the second proviso to sub-section (2) of Section 2 of the Principal Act.
"Provided also that the acquisition of land for the projects listed in Section 10A and the purposes HCJ & DVSS, J W.P.Nos.32956, 33034 of 2015;
-48- W.P.No.8639 of 2016 &
W.A.No.852 of 2016
specified therein shall be exempted from the
provisions of the first proviso to this sub-section".
51. It is, thus, clear that the requirement of prior consent of 70 percent affected families as mentioned in the first proviso to Section 2(2) of the LA Act, 2013 is not applicable when the land is acquired for the projects listed under Section 10A, which includes infrastructure projects like establishment of an international airport.
52. It is also to be noticed that the requirement of prior consent along with Social Impact Assessment Study is in the context of application of Chapter II and Chapter III for all acquisitions without exception. This was the situation when Section 10A was not introduced by the Ordinances or later under A.P. Amendment Act (Act No.22 of 2018), which has retrospective effect. Once the State amendment has inserted third proviso to sub-section (2) of Section 2 of the LA Act, 2013, exempting compliance of the first proviso for infrastructure projects, there is no need to seek prior consent of 70 percent affected families. The fact that process of obtaining consent is required to be carried out along with Social Impact Assessment Study clearly contemplates a HCJ & DVSS, J W.P.Nos.32956, 33034 of 2015;
-49- W.P.No.8639 of 2016 & W.A.No.852 of 2016 situation that prior consent is required only where Social Impact Assessment Study is also required. However, once the Social Impact Assessment Study provisions as contained in Sections 4 to 9 are exempted for any particular project, prior consent clause is also not applicable. This interpretation is necessary to carry out the obvious intention of the legislature to facilitate the early completion of infrastructure projects of substantial importance. In Dadi Jagannadham (supra), the Hon'ble Supreme Court has held that the settled principles of interpretation are that the Court must proceed on the assumption that the legislature did not make a mistake and that it did what it needed to do. The Court must, as far as possible, adopt a construction which will carry out the obvious intention of the legislature.
53. In G.P. Singh's "Principles of Statutory Interpretation"
11th edition, at page No.147, the learned author referred to the judgment rendered by LORD SHAW in Shannon Realities Ltd. V. St. Michel (Vill De), reported in (1924) AC 185, while dealing with the principles regarding avoiding uncertainty and friction in the system which the statute purports to regulating. The following is the text in the book:
HCJ & DVSS, J W.P.Nos.32956, 33034 of 2015;
-50- W.P.No.8639 of 2016 & W.A.No.852 of 2016 "This principle has been stated by LORD SHAW in the following words: "Where words of a statute are clear, they must, of course, be followed but in their Lordships' opinion, where alternative constructions are equally open that alternative is to be chosen which will be consistent with the smooth working of the system which the statute purports to be regulating; and that alternative is to be rejected which will introduce uncertainty, friction or confusion into the working of the system."
54. Learned author has also referred to the decisions of the Hon'ble Supreme Court in Central Bank of India v. Ravindra, reported in AIR 2001 SC 3095 = (2002) 1 SCC
367. Issue No.5:
55. The next ground of attack raised by the petitioners is that the precondition of ensuring bare minimum extent of land required for the project as also to retain the ownership of the land with the Government having been violated, the respondents are not eligible to avail exemption under Section 10A of the LA Act, 2013. Referring to Section 4(4) of the LA Act, 2013, it is argued that the appropriate Government should have undertaken the exercise of estimation of affected HCJ & DVSS, J W.P.Nos.32956, 33034 of 2015;
-51- W.P.No.8639 of 2016 & W.A.No.852 of 2016 families and the number of families among them likely to be displaced; whether the extent of land proposed for acquisition is the absolute bare minimum extent needed for the project.
However, there is non-compliance of this provision, which is contrary to the object and policy of the LA Act, 2013. It is also argued that even to avail exemption under Section 10A of the Act, bare minimum extent of land is required to be determined. Highlighting the fact that the initial requisition was for acquisition of 5500 acres of land, it is submitted that respondents failed to ensure bare minimum land required for the project. Referring to the land allotment policy of the Government of Andhra Pradesh, it is argued that the airport of the size proposed to be completed at Bhogapuram, would require only 840 acres, whereas the State Government is acquiring land almost 500 percent more than the required extent of land. In respect of the issue regarding transfer of lands to private entity, learned senior counsel would submit that all the lands have been transferred to Bhogapuram International Airport Corporation Limited (now Andhra Pradesh Airport Development Corporation Limited) and, as such, ownership of all Government lands have been HCJ & DVSS, J W.P.Nos.32956, 33034 of 2015;
-52- W.P.No.8639 of 2016 & W.A.No.852 of 2016 transferred to a private entrepreneur under PPP mode for the establishment of Bhogapuram Airport irrespective of respondents acquiring zeroythi or assigned lands. Such transfer of land is violative of Section 2(a) and Section 10A of the LA Act, 2013. The acquired land should necessarily be vested continuously with the Government and the same is also prescribed as mandatory precondition to avail exemption under Chapter II and Chapter III of the LA Act, 2013. Since both the provisions are breached, the same invalidates the impugned notifications. According to the learned senior counsel, the SPV by name Bhogapuram International Airport Company Limited can transfer through divesting majority stake to successful bidder and the Government may retain minority stake through equity equal to land cost; thereby intention of the 1st respondent is clearly evident that the land is given to SPV whose control ultimately is with the private company under PPP mode; thereby transferring the ownership of the land in favour of the private company. This is in violation of the provisions of law as well as divesting the respondents to seek exemption from application of Chapter II HCJ & DVSS, J W.P.Nos.32956, 33034 of 2015;
-53- W.P.No.8639 of 2016 & W.A.No.852 of 2016 and Chapter III for the reason that ownership is not retained by the Government.
56. Countering the above submissions, learned Advocate General has argued that the State has undertaken the exercise for identification of the land; therefore, the statement contrary is factually incorrect. It is put forth that mere fact that the initial notified acquisition was for 5311 acres of land, which was eventually reduced to 2700 acres of land, which is almost half of the initial area, goes to demonstrate that there is serious application of mind to the actual requirement for the project and the allied activities connected to the activity of running the airport. According to the learned Advocate General, the State has continuously monitored the requirement of the project vis-à-vis extent of the land acquired, both at the stages prior to the acquisition and through the process of acquisition, to abide by the mandate of the proviso to Section 10A, as amended. Insofar as the required extent of land on the touchstone of parameters contained in G.O.Ms.No.571 dated 14.09.2012 is concerned, it is argued by the learned Advocate General that the guidelines under the said G.O. are in relation to the HCJ & DVSS, J W.P.Nos.32956, 33034 of 2015;
-54- W.P.No.8639 of 2016 &
W.A.No.852 of 2016
allotment of Government land to various requisitioning
authority and the allied matters, which in any way, do not serve as a guide in respect of locating an international airport in a metropolitan region. He refers to the Division Bench judgment dated 31.08.2015 in the matter of Uppada Siva Reddy v. the Union of India and others (PIL No.212 of 2015).
57. Replying to petitioners' contention about vesting of the lands in a private entity, learned Advocate General would refer to the recommendations of the project proponent and paragraphs 4 and 7 of G.O.Rt.No.63 dated 20.05.2015 to canvass that the G.O. does not envisage any transfer of land to the SPV or to the successful bidder. Referring to Articles 10.1, 10.2 and 42 of the concessionaire agreement entered into between the SPV and the successful bidder, learned Advocate General would highlight that the said Articles clearly limit the rights of the bidder to right of way, licensed use and regulated access with restriction even on subletting. Therefore, the ownership always remains vested with the Government and there is no transfer of land to the private entity.
HCJ & DVSS, J W.P.Nos.32956, 33034 of 2015;
-55- W.P.No.8639 of 2016 & W.A.No.852 of 2016
58. Considering the rival submissions on the twin issues raised by the petitioners in respect of not ensuring minimum acquisition of land and transfer of land to the private entity, it is to be seen that the initial notification for acquisition was for 5311 acres of land, which was eventually reduced to 2700 acres. This reduction in the extent of land for an international airport clearly speaks about constant application of mind and monitoring as to the actual requirement of land. The State having reduced the requirement of land almost to the half of the earlier notified area, would lead us to an irresistible conclusion that the same cannot happen unless the State has ensured minimum acquisition of land. The project of this magnitude always requires preparation of plan, which necessarily includes the land required for the airport and allied activities. G.O.Ms.No.571 dated 14.09.2012 is a document titled as "Government land policy" - Uniform guidelines with regard to Government land to be allotted for various purposes. According to the guidelines, greenfield airport for ATR 72/ATR 42 type of aircraft requires about 600 acres of land, whereas landing bigger aircrafts like AB 320/B-737 requires 840 acres for Aeronautical activities and another 100 HCJ & DVSS, J W.P.Nos.32956, 33034 of 2015;
-56- W.P.No.8639 of 2016 & W.A.No.852 of 2016 acres for non-Aeronautical activities. It is further mentioned therein that with regard to the existing Non-Metro Airports like Vijayawada, Rajahmundry, Kadapa and Warangal, there is proposal for upgradation where total requirement of land comes to about 1200 to 1300 acres. The policy does not speak about the area requirement for establishment of an international airport in the Metropolitan region. Thus, the document is of no help to the petitioners. In the course of arguments, learned Advocate General informed this Court that Bangalore International Airport is established in an area of 4500 acres, whereas Hyderabad International Airport and the proposed International Airport at Jewar, Noida, are spread over an area of 5500 acres each.
59. In Public Interest Litigation No.212 of 2015 decided by the composite High Court on 31.08.2015, challenge was to the action of the State in acquiring huge land from small and middleclass farmers disproportionately, as also to cancel the proposal of setting up a greenfield international airport at Bhogapuram. Negating the submission in respect of the location of the airport and the extent of land proposed to be acquired, the Division Bench observed that it is a matter of HCJ & DVSS, J W.P.Nos.32956, 33034 of 2015;
-57- W.P.No.8639 of 2016 & W.A.No.852 of 2016 policy, which Government seems to have taken on the basis of expert advice and future needs and the Court cannot substitute its opinion and direct the Government either to cancel the proposal of setting up an international airport or to change the location. In our considered view, the said finding by the Division Bench operates as res judicata and petitioners' contention as to the extent of land proposed to be acquired, cannot be examined again in these cases.
60. In Balco Employees Union v. Union of India, reported in (2002) 2 SCC 333, the Hon'ble Supreme Court has observed that the function of the Court is to see that the lawful authority is not abused, but not to appropriate to itself the task entrusted to that authority. In State of M.P. v. Narmad Bachao Andolan and another, reported in (2011) 7 SCC 639, the Hon'ble Supreme Court has observed that the Court cannot strike down a policy decision taken by the Government merely because it feels that another would have been fairer or more scientific or logical or wiser; the wisdom and advisability of the policies are ordinarily not amenable to judicial review unless the policies are contrary to statutory or HCJ & DVSS, J W.P.Nos.32956, 33034 of 2015;
-58- W.P.No.8639 of 2016 & W.A.No.852 of 2016 constitutional provisions or arbitrary or irrational or an abuse of power.
61. The Concessionaire Agreement executed between the SPV and the successful bidder provides in Article 42 the rights and title over the airport site. The entire Article 42 is reproduced hereunder for ready reference:
"RIGHTS AND TITLE OVER THE AIRPORT SITE"
"42.1 Licensee rights For the purpose of this Agreement, the Concessionaire shall have the rights to the use of the Site as sole licensee subject to and in accordance with this Agreement, and to this end, it may regulate the entry and use of the Airport by third parties in accordance with and subject to the provisions of this Agreement."
"42.2 Access rights of the Authority and others 42.2.1 The Concessionaire shall allow free access to the Site at all times for the authorised representatives of the Authority, Senior Lenders, and the Independent Engineer, and for the persons duly authorised by any Government Instrumentality or Designated GOI Agency to inspect the Airport and to investigate any matter with their authority, and upon reasonable notice, the Concessionaire shall provide HCJ & DVSS, J W.P.Nos.32956, 33034 of 2015;
-59- W.P.No.8639 of 2016 & W.A.No.852 of 2016 to such persons reasonable assistance necessary to carry out their respective duties and functions."
"42.2.2 The Concessionaire shall, for the purpose of operation and maintenance of any utility or road specified in Article 11, allow free access to the Site at all times for the authorised persons and vehicles of the controlling body of such utility or road."
"42.3 Restriction on sub-letting The Concessionaire shall not sub-license or sublet the whole or any part of the Site, save and except as may be expressly set forth in this Agreement; provided that nothing contained herein shall be construed or interpreted as restricting the right of the Concessionaire to appoint Contractors for the performance of its obligations hereunder including for operation and maintenance of all or any part of the Airport."
62. A bare reading of the contents of Article 42 reproduced hereinabove manifests that the Concessionaire shall have rights to the use of the site as sole licensee. The use of the term "licensee" itself clarifies that the Concessionaire, i.e. private entity is not the owner of the site, but is a licensee. There is restriction on subletting as mentioned in Article 42.3, HCJ & DVSS, J W.P.Nos.32956, 33034 of 2015;
-60- W.P.No.8639 of 2016 & W.A.No.852 of 2016 again suggesting that Concessionaire being a licensee only and not the owner, cannot create a sub-license or sublet the whole or any part of the Site. With this provision in the Concessionaire Agreement, there is no iota of doubt that the ownership of the site remains with the Government and the petitioners' contention to the contrary is factually incorrect.
63. In view of the above discussion, both the contentions raised by the learned senior counsel for the petitioners regarding acquisition of excess land or not retaining transfer of the land, are rejected.
Issue No.6:
64. Learned senior counsel for the petitioners would submit that A.P. Amendment Act (Act No.22 of 2018) inserting the same provisions which were introduced by Ordinance No.9 of 2014, Ordinance No.4 of 2015 and Ordinance No.5 of 2015, which were allowed to be lapsed, is unconstitutional because once the same provisions were not made law, the same provisions cannot be introduced by State amendment. According to him, despite A.P. Amendment Act (Act No.22 of 2018) having secured the Assent of the Hon'ble President of HCJ & DVSS, J W.P.Nos.32956, 33034 of 2015;
-61- W.P.No.8639 of 2016 & W.A.No.852 of 2016 India, which is a requirement under Article 254(2) of the Constitution of India, the said Assent appears to be mechanical and empty formality as neither the State Government nor the Union of India have pointed out the circumstances, repugnancy and the reasons for having such law despite lapse of the Ordinances. Learned counsel would refer to the decision of the Hon'ble Supreme Court in Kaiser- I-Hind Pvt. Ltd. (supra). He would further submit that there is no material showing that repugnancy between the State amendment and the Central Act was placed before the Hon'ble President of India. He would also submit that Assent given by the President is contrary to established principles of Constitutional law. The State amendment cannot be permitted or allowed to have predominance or overriding effect over the provisions of the Central Act No.30 of 2013. He would submit that the State amendment violates the main objective and the basic structure of the Central Act. He would also refer to the judgments of the Hon'ble Supreme Court in Gram Panchayat of Village Jamalpur (supra), Grand Kakatiya Hotel (supra) and that of Bombay High Court in Basantlal Banarsilal (supra), to argue that while according HCJ & DVSS, J W.P.Nos.32956, 33034 of 2015;
-62- W.P.No.8639 of 2016 & W.A.No.852 of 2016 Assent to the State amendment in a Central enactment, the President should apply his mind. It is next argued by the learned senior counsel that Section 1(3) of the A.P. Amendment Act (Act No.22 of 2018) provides that Amendment Act shall have effect notwithstanding anything contained in any law or judgment or order of any court or authority without affecting the vested rights. Therefore, the accrued vested rights of the petitioners in terms of the Social Impact Assessment Study and Food Security Issues, cannot be taken away by Section 3 of the A.P. Amendment Act (Act No.22 of 2018) and for the same reason, the provision does not have a retrospective operation.
65. Learned Advocate General would submit, in counter to the arguments raised by the learned senior counsel for the petitioners, that there is no foundation in the writ petitions as to on what grounds and on the basis of any particular Constitutional defect the A.P. Amendment Act (Act No.22 of 2018) is unconstitutional. Such foundation is necessary in view of the decisions of the Hon'ble Supreme Court in State of Haryana v. State of Punjab (supra) and J. Venkateswarlu v. Union of India (supra). Learned HCJ & DVSS, J W.P.Nos.32956, 33034 of 2015;
-63- W.P.No.8639 of 2016 & W.A.No.852 of 2016 Advocate General would argue that Central Act as well as the State amendment vide Act No.22 of 2018, are legislations in the very same legislative field, i.e. Entry 42 of the Concurrent List. Therefore, repugnancy is resolved by securing the Assent of the Hon'ble President of India. It is further argued that in the absence of foundational pleading in the writ affidavits that the Assent of the Hon'ble President does not satisfy the tests laid down by the Hon'ble Supreme Court in the case of Kaiser-I-Hind Pvt. Ltd. (supra), a verbal contention of the petitioners raised at the time of arguments is factually without any substance and legally untenable. The record of passing of the Act and the subsequent Assent by the Hon'ble President clearly indicates application of mind. It is also put forth that that similar legislations with same effect including with retrospective date, have been upheld by the Gujarat High Court in relation to Gujarat State Amendment Act, 2016 in Jigarbhai Amritbhai Patel (supra); Karnataka High Court in relation to Karnataka State Amendment Act, 2019 in S. Jalaja (supra) and the Supreme Court decision in the matter of G. Mohan Rao (supra), dealing with Tamil HCJ & DVSS, J W.P.Nos.32956, 33034 of 2015;
-64- W.P.No.8639 of 2016 & W.A.No.852 of 2016 Nadu Amendment to respective enactments exempting the provisions of Act 30 of 2013.
66. Concededly, A.P. Amendment Act (Act No.22 of 2018) has received the Assent of the Hon'ble President of India. Therefore, provisions contained in the State Amendment Act would prevail in the State, despite repugnancy, by virtue of the provisions contained in Article 254(2) of the Constitution of India. The legal principle is settled that the Assent of the President should not be mechanical and that materials should be placed before the Hon'ble President for consideration at the time of according Assent; otherwise despite the Assent, the repugnancy may be fatal for the said Act.
67. In Kaiser-I-Hind Pvt. Ltd. (supra), it is held that Assent of the President envisaged under Article 254(2) of the Constitution of India is neither an idle or empty formality, nor an automatic event, necessitated or to be given for the mere asking, in whatever form or manner and whether specific, vague, general of indefinite - in the terms sought for. The claim that once sought and obtained as well as published, a curtain or veil is drawn, to preclude any probe or contention for consideration that what was sought and obtained was not HCJ & DVSS, J W.P.Nos.32956, 33034 of 2015;
-65- W.P.No.8639 of 2016 & W.A.No.852 of 2016 really what should and ought to have been, to claim the protection envisaged under Clause (2) in respect of a particular State law on the same subject made by the Parliament, the President has to be apprised of the reasons at least as to why is assent is being sought, the need or necessity and the justification or otherwise for claiming predominance for the State law concerned.
68. It is held by the Hon'ble Supreme Court in the above decision that the Assent accorded by the President is not justifiable and courts cannot spell out any infirmity in the decision arrived at, to give the assent. It is also not given to anyone to challenge the decision of the President according Assent on merits and as to its legality, propriety or desirability. It is also held that to uphold as valid the claim for any such blanket assent or all-round predominance over any and every such law -- whether brought to the notice of the President or not, would amount to legitimization of what was not even in the contemplation or consideration on the basis of some assumed "consideration". In order to find out the real state of affairs as to whether the "assent" in a given case was after a due and proper application of mind and HCJ & DVSS, J W.P.Nos.32956, 33034 of 2015;
-66- W.P.No.8639 of 2016 & W.A.No.852 of 2016 effective "consideration" as envisaged by the Constitution, this Court as well as the High Court exercising powers of judicial review are entitled to call for the relevant records and look into the same.
69. The State has placed before us the record containing the papers which were sent to the Hon'ble President of India for obtaining the Assent as required under Article 254(2) of the Constitution of India. The same is available in the judgment compilation Volume III from pages 250 to 260. The record contains copy of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement (Andhra Pradesh Amendment) Bill, 2017, as also the Note for Circulation setting out the reasons as to why the said Amendment Act is necessary. The following are the contents of the Note for Circulation containing the reasons for bringing out the said amendment:
"2. The Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement At, 2013 (Central Act, No.30 of 2013) was enacted to provide for Land Acquisition in a transparent manner, and just and fair compensation to the land loosers/affected families whose lands HCJ & DVSS, J W.P.Nos.32956, 33034 of 2015;
-67- W.P.No.8639 of 2016 & W.A.No.852 of 2016 have been acquired or proposed to be acquired, including the acquisition of lands required for important National Projects, Industries purpose and other public purposes etc.,"
"3. While the Act contains certain innovative features like Social Impact Assessment and Food Security, Higher Compensation and Rehabilitation and Resettlement award along with Land Acquisition award etc., and to check in-discriminatory acquisition of land of farmers and to provide proper rehabilitation to affected families, at the same time, the process of land acquisition specially for projects requiring early completion in view of strategic importance for development has become lengthy and time consuming."
"4. The State of Andhra Pradesh aims to grow at a very fast rate. For this purpose, with the help of Government of India, various mega projects in the sectors of infrastructure, communications, constructions of National Highways, New Railway Lines, Port facilities etc., have been sanctioned. All these projects require that the land be made available immediately, otherwise there will be high escalation in the costs and also the benefits of development will ..."
"However, the State of Andhra Pradesh has faced difficulties in acquiring land under Act, No.30 of HCJ & DVSS, J W.P.Nos.32956, 33034 of 2015;
-68- W.P.No.8639 of 2016 & W.A.No.852 of 2016 2013. In order to facilitate land acquisition for various developmental projects in the State of Andhra Pradesh, it is necessary to make certain benefits to the owners of the land and the affected families. Accordingly, to achieve the said purpose, it is necessary to amend Act, 30 of 2013 for the State of Andhra Pradesh."
70. Paragraph 9 of the note for circulation mentions the Entries in the State and Concurrent Lists to the Seventh Schedule, to which proposed legislation (State Amendment) falls, with further statement that the LA Act, 2013 and earlier law made by the Parliament being in operation, the Bill after it is passed by the Legislature of the State, has been reserved by the Governor for the consideration and Assent of the President of India under Article 254(2) of the Constitution of India.
71. The material papers sent to the Hon'ble President of India for consideration clearly reveal the need for the State Amendment to the Central Act, the reason for such enactment and the requirement of obtaining Assent of the Hon'ble President in view of the central legislation in operation in the State. Thus, the test laid down by the Hon'ble Supreme Court in the matter of Kaiser-I-Hind Pvt. Ltd. (supra) as to what HCJ & DVSS, J W.P.Nos.32956, 33034 of 2015;
-69- W.P.No.8639 of 2016 & W.A.No.852 of 2016 is required for a consideration to be a valid exercise, for the President of India before according Assent, is duly satisfied in the present case. Once consideration by the Hon'ble President is held to be proper in accordance with law, it is not open for this Court to dwell on the merits of the legislation. The Division Bench of Karnataka High Court has also upheld the similar State Amendment in the matter of S. Jalaja (supra).
72. In G. Mohan Rao (supra), the Hon'ble Supreme Court was considering the validity of the State amendments made to the LA Act, 2013, seeking to protect and preserve the State Acts from the operation of the LA Act, 2013, as the Tamil Nadu Legislature found its own legislations to be expedient. The Tamil Nadu Government enacted Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement (Tamil Nadu Amendment) Act, 2014 making the provisions of the LA Act, 2013, inapplicable to acquisition of land under the three State enactment. The retrospective date was chosen by the State legislature with the objective to protect the acquisition under the three State enactments from being rendered void due to HCJ & DVSS, J W.P.Nos.32956, 33034 of 2015;
-70- W.P.No.8639 of 2016 & W.A.No.852 of 2016 repugnancy after coming into effect of the LA Act, 2013. The Hon'ble Supreme Court considering the scope of judicial review and the procedural requirement of obtaining Assent of the Hon'ble President of India under Article 254(2) of the Constitution of India, observed thus in paragraph 70:
"70. In the present case, the letter seeking assent clearly demonstrates that the three State enactments were made for the purpose of speedy acquisitions. It further states that the law made by the Parliament rendered the three enactments repugnant and out of operation owing to the Madras High Court judgment. It also states that the State has considerable interest, having a strong bearing on the public exchequer, in saving and reviving the three State enactments. It also clearly specifies the law made by the Parliament, which could be coming in the way of the State enactments for due consideration by the President. Suffice it to say that the communication was in compliance with the mandate of Article 254 as well as with the decision of this Court in Kaiser-I-Hind Pvt. Ltd.49 We see no reason to intervene on this ground."
73. Insofar as the validity of the retrospective operation of the A.P. Amendment Act (Act No.22 of 2018) is concerned, the same issue was considered by the Hon'ble Supreme Court HCJ & DVSS, J W.P.Nos.32956, 33034 of 2015;
-71- W.P.No.8639 of 2016 &
W.A.No.852 of 2016
in G. Mohan Rao (supra). The Hon'ble Supreme Court
observed thus in paragraphs 72, 73 and 75:
"72. The above understanding emanates from the basic concept of retrospectivity. The primary objective of retrospective application of a law is to alter an undesirable past circumstance and it is meant to apply to things which have already happened. In Halsbury's Laws of England, retrospectivity is defined as:
"921. Meaning of "retrospective". It has been said that "retrospective" is somewhat ambiguous and that a good deal of confusion has been caused by the fact that it is used in more senses than one. In general, however, the courts regard as retrospective any statute which operates on cases or facts coming into existence before its commencement in the sense that it affects, even if for the future only, the character or consequences of transactions previously entered into or of other past conduct. Thus a statute is not retrospective merely because it affects existing rights; or is it retrospective merely because a part of the requisites for its action is drawn from a time antecedent to its passing."
"73. The underlying purpose of retrospectivity, therefore, is to cure including validate certain transactions of the past by making a law in the present and not to compete with the laws existing in HCJ & DVSS, J W.P.Nos.32956, 33034 of 2015;
-72- W.P.No.8639 of 2016 & W.A.No.852 of 2016 the past at that point of time. In this case, the objective was to save and validate past acquisitions under the three State enactments, which were valid until the commencement of the 2013 Act but stood quashed due to the High Court decision. This was also for altering the basis of the law in existence at that point of time and providing for benefits at par with the 2013 Act, so far as it was fit in the wisdom of the State legislature. No doubt, it may appear anomalous to operationalise the 2019 Act from 26.09.2013, a day prior to the making of the 2013 Act, but it does not make any impact on the validity thereof or its substance. The date has been chosen by the State legislature only by way of abundant caution and, in our view, rightly. It is obviously relevant to overcome the repugnancy corresponding to the commencement of the 2013 Act. Adopting any other interpretation would not only be unwarranted as per the constitutional scheme but would also strike at the very purpose of a retrospective reviving and validating enactment. More so, it would open a pandora's box of unforeseen conflicts."
"75. In light of the aforesaid discussion, we hold the 2019 Act to be a legitimate legislative exercise and find it to be consistent with and within the four corners of Article 254 of the Constitution of India and also of the High Court judgment."
HCJ & DVSS, J W.P.Nos.32956, 33034 of 2015;
-73- W.P.No.8639 of 2016 & W.A.No.852 of 2016
74. In view of the law laid down by the Hon'ble Supreme Court in the aforesaid case, once there was active consideration and application of mind by the Hon'ble President of India by considering all relevant aspects of the matter which were presented before the Hon'ble President of India at the time of obtaining Assent, the Sate Amendment cannot be said to be in violation of Article 254(2) of the Constitution of India, nor the retrospectivity can be declared unconstitutional.
75. Before concluding, we must also notice that the total area notified for acquisition is 2700 acres. The airport is proposed to be developed in an area of 2200 acres and the remaining 500 acres will be used for allied activities. An amount of Rs.678 crore has already been paid to the landowners and the land already in possession of the Government is 2064 acres as against 2200 acres meant for airport development. The total number of affected landowners is 1959, out of which 1937 landowners have agreed for consent awards which have since been passed. As stated above, the State Government is already in possession of 2064 acres of land except 37.15 acres, which is surviving for adjudication on merits in these cases. Although the writ HCJ & DVSS, J W.P.Nos.32956, 33034 of 2015;
-74- W.P.No.8639 of 2016 & W.A.No.852 of 2016 petitions as filed earlier involved some more area, however, during their pendency, all other petitioners except with regard to 37.15 acres have received the compensation by consenting to the award. Therefore, only a small patch of land in the middle of the airport remains to be occupied by the Government for development of the airport. Overwhelming public interest is in favour of allowing construction activity at the airport to begin soon and the same cannot be left in suspended animation any further. It is not in public interest, more so when there are no legal grounds, to interfere in these cases.
76. Accordingly, all the writ petitions as well as the writ appeal are dismissed. Interim orders shall stand vacated. No order as to costs. Pending miscellaneous applications, if any, shall stand closed.
Sd/- Sd/- PRASHANT KUMAR MISHRA, CJ D.V.S.S. SOMAYAJULU, J MRR