Andhra HC (Pre-Telangana)
Andhra Pradesh Housing Development And ... vs Government Of Andhra Pradesh And Ors. on 7 December, 2001
Equivalent citations: 2002(2)ALD721
JUDGMENT G. Bikshapathy, J.
1. Both these writ petitions can be disposed of by common order.
2. WP No.19065 of 1996 is filed challenging the notification issued by the Government in G.O. Ms. No.658 Revenue dated 9-8-1996 cancelling the order in G.O. Ms. No. 103 Revenue (LA) Department, dated 10-3-1995. Further, the petitioner is also challenging G.O. Ms. No.725 dated 16-12-1995 withdrawing G.O. Rt. No.1227 Revenue, dated 12-10-1995; G.O. Rt. No. 1444 Revenue, dated 22-11-1995 and G.O. Rt. No. 1445 dated 22-11-1995 and also memorandum No.26509/LAl/96-3 dated 12-8-1996 and for consequential reliefs. In WP No.22778 of 1996, the petitioner is seeking a writ of mandamus directing the respondents to implement the orders passed by this Court in WP No.17409 of 1989 and WP No.I6440 of 1995 dated 26-3-1996 by acquiring and delivering the possession of items 1, 2-A and 2-B of vacant land covered by Articles of Agreement dated 24-4-1995 by declaring the order in G.O. Ms. No.658 dated 9-8-1996 as illegal and arbitrary.
3. The case has a chequered career. The petitioner is a company registered under the provisions of the Companies Act. The main object of the company is to construct houses and manufacture building material and train the educated unemployed in construction of buildings and provide housing finance to the homeless people and to conduct business on no profit no loss basis'. The company was incorporated on 19-2-1992.
4. It is the case of the petitioner that it cannot purchase more than 1000 square meters in view of the bar under the Urban Land (Ceiling and Regulation) Act, 1976. Therefore, the petitioner made a representation to the authorities to acquire the land under the provisions of the Land Acquisition Act so as to enable the petitioner to construct the houses and allot the same to the weaker sections of the society on 'no profits no loss basis'. On 20-8-1992, the respondents informed the petitioner to identify the land where the dwelling houses are to be constructed and directed the concerned District Collectors to initiate Land Acquisition proceedings after deposit of the land value. Accordingly, the petitioner agreed to deposit the land value. Since there was no response from the Government, the petitioner filed WP No.750 of 1993 and the same was disposed of on 29-1-1993 directing the petitioner to file representation before the Government, which shall be disposed of expeditiously. But, however, the Government did not act on the direction. Therefore, the contempt case in CC No.81 of 1993 was filed. When the contempt case was pending, a memo dated 15-2-1993 was issued rejecting the request of the petitioner without assigning any reasons against which the petitioner filed another writ petition in WP No.3409 of 1993 and the same was disposed of directing the respondents to pass a speaking order. After repeated representations, the Government issued a Memo dated 2-6-1994 for acquiring the land of Ac.6-00 in Sy No.359 Part in Shaikpet village, Golconda Mandal, and Ac.15-86 cents in T.S.No.16/1 and 16/2 at Yousufguda, Hyderabad. Thereafter, an enquiry was conducted and the Deputy Tahsildar submitted his report. The matter was considered by the Government and the Government issued G.O. Ms. No. 103 dated 10-3-1995 for acquisition of land mentioned above for the housing scheme, which is a public purpose. Thereafter, the Collector was directed to intimate the petitioner to deposit the funds required for land acquisition. The third respondent assessed the value of the land at Rs.13,64,60,480/-. The petitioner also agreed to deposit the said amount and in pursuance of G.O. Ms. No.103, the petitioner also entered into an agreement with the Government and the same was also published in the A.P. Gazette dated 5th July, 1995 and also in the newspapers 'Deccan Chronicle' and 'Eenadu'. The Government also issued letter on 19-10-1995 directing the Collector second respondent to publish notification under Section 4(1) of the Land Acquisition Act and to conduct the enquiry under Section 5-A after getting the approximate amount to be deposited by the petitioner. It is the case of the petitioner that it approached the Housing and Urban Development Corporation for grant of loan for the purpose and requested the Government to grant permission to sell or mortgage the land being acquired for the requirement of the petitioner to enable it to raise the loan. The Government issued G.O. Ms. No.1445 Revenue dated 22-11-1995 directing the District Collector to handover the possession of the land after getting the deposit of total market value. The Government also issued G.O. Ms. No.1227 dated 12-10-1995 according permission to the petitioner to sell, mortgage or lease under provisions of Transfer of Property Act. Even though the petitioner has been making repeated requests to handover the possession of the land and also initiate Land Acquisition proceedings by issuing notification under Section 4(1), no action was taken.
5. While the matter stood thus, the Government passed orders in G.O. Ms. No.725, Revenue Department, dated 16-12-1995 suspending the orders in G.O. Rt. Nos.1227, 1444 and 1445. Thereupon, the petitioner filed a writ petition in WP No.29010 of 1995 and the same was disposed of on 19-3-1996 directing the petitioner to approach the Government by making representation. Thereafter, the petitioner submitted the representation in pursuance of the direction granted in WP No.29010 of 1995. The petitioner also filed writ appeal in WA No.342 of 1996 and the same was dismissed. Thereupon, the matter was carried to the Supreme Court and there also, the case was dismissed.
6. In pursuance of the direction of this Court in WP No.29010 of 1995, a show-cause notice was issued on 4-5-1996 to which the petitioner submitted the explanation. But, however, the first respondent Government passed the order in Memo dated 8-8-1996 and G.O. Ms. No.658 dated 9-8-1996 cancelling the order passed in G.O. Ms. No.103, dated 10-3-1995. The Government also passed orders in memorandum dated 12-8-1996 again reiterating the stand in G.O. Ms. No.725 dated 16-12-1995. Aggrieved by the two orders, the writ petition has been filed.
In the counter-affidavit filed by the Government, it is stated that the orders passed in G.O. Ms. No.103 were found to be not in accordance with law and therefore, after issuing notice to the petitioner, the orders were withdrawn in G.O. Ms. No.658 dated 9-8-1996. So also, the orders were passed in G.O. Ms. No.725 withdrawing the concessions granted in G.O. Ms. Nos.1227,1444 and 1445 as they are illegal, contrary to the decisions of the Supreme Court and also provisions of the Land Acquisition Act. It is also stated that the respondents are not entitled for the allotment of the land as the Urban Land (Ceiling and Regulation) Act and the Land Acquisition Act do not permit such an acquisition for a company.
7. The issue that arises for consideration in this writ petition is whether the impugned orders are valid in law.
8. It is not in dispute that the Government issued orders in G.O. Ms. No.103 dated 19-3-1995 giving various directions to the Collector for acquisition of land and agreement was also published in the Gazette and also the newspapers. The various directions issued in G.O. Ms. No. 103 are extracted below:
"(i) According to Sections 39 and 40 of the Land Acquisition Act, 1894 previous consent of the Government is required to acquire lands for Companies. The Collectors, who are approached by the Corporation in question should follow the instructions contained in Part-VII of the Land Acquisition Act, 1894 and submit necessary proposals to Government for consent;
(ii) The Collectors concerned should see that a mutually negotiated rate is arrived at under the Andhra Pradesh Land Acquisition (Negotiation Committee) Rules, 1992, in the matter of cost of the land, so as to avoid subsequent litigations by the landlords, whose lands are proposed to be acquired for the Corporation, so that subsequent enhancement by 'the Courts' if any, is avoided. For this purpose the Collectors may complete the process within six months to avoid litigations in Courts. The approximate cost of the acquisition (including additional market value, solatium and interest) be intimated to the said Corporation , so as to enable them to get the amount ready to deposit on a short notice even before the Government, consent is sought for by the Collectors (Land Acquisition Officers) concerned;
(iii) The Collectors concerned should get the agreement executed by the Corporation as provided under Section 41 of the Land Acquisition Act, 1894 along with publication charges;
(iv) The Collectors concerned should ask the Corporation to deposit the cost of the land as arrived at under condition (2) above, after publication of such agreement under Section 42.
(v) The said Corporation is squarely responsible for all the litigations, if any, arising out of the acquisition and they should contest through their own legal officers at their own cost. If, the Government incur any expenditure on such litigations arising out of acquisition of lands for the Corporation the same should be reimbursed by the said Corporation;
(vi) In case, the lands proposed for acquisition attracts the provisions of the Urban Land (Ceiling and Regulation) Act, 1976, the instructions issued in the Government Memo No.449922 /UC.I(2)/92-l, Revenue dated 18-8-1992 should be followed; and
(vii) The Collectors concerned should follow the provisions laid down in Part-VII read with the Land Acquisition (Companies) Rules, 1963 under the Land Acquisition Act, 1894 scrupulously."
9. But, the issue that arises for consideration is whether the Government is entitled to cancel the proposal of the land acquisition already accepted in principle in G.O. Ms.No.103?
10. Learned senior Counsel for the petitioner, Mr. K. Subramanya Reddy, submits that when once the Government has agreed in principle to acquire the land and to initiate the land acquisition proceedings and also having directing the Collector to take further action in pursuance of that order, it would not be open to the Government to resile from the commitment made and the land has to be necessarily acquired except in case of withdrawal of notification. In the instant case, though Section 4(1) notification was not published, since the Government has already agreed to acquire the land, it cannot cancel the same without withdrawing notification in accordance with the provisions of the Act.
11. The learned senior Counsel further submits that the grounds assigned by the Government in their Memo dated 8-8-1966 and 12-8-1966 in respect of the G.O. Ms. No. 103 and G.O. Ms. No.745 are wholly illegal and untenable. He submits that the Government failed to properly appreciate the provisions contained in Section 40(l)(aa) of Land Acquisition Act is a proper perspective. The impression gained by the Government that the acquisition would not fall within the ambit of "public purpose" is wholly misconceived. He also submits that equally Government failed to consider the purport of Section 23 of Urban Land Ceiling Act and came to an erroneous conclusion. Therefore, on both the grounds, the impugned Orders are liable to be set aside.
12. The learned Counsel submits that the Part-VII of the Land Acquisition Act covers the acquisition of the land for Companies and the Government having quite rightly initiated the proceedings under the said part cannot now say that it is not for public purpose. He refers to Section 40 of Land Acquisition Act with reference to Sub-clause (aa) which reads thus:
Section 40 Previous enquiry (1) Such consent shall not be given unless the appropriate Government be satisfied, either on the report of the Collector under Section 5-A Sub-section (2), or by an enquiry held as hereinafter provided, --
(a) that the purpose of the acquisition is to obtain land for the erection of dwelling houses for workmen employed by the Company or for the provision of amenities directly connected therewith, or (aa)that such acquisition is needed for the construction of some building or work for a Company which is engaged or is taking steps for engaging itself in any industry or work which is for a public purpose, or
(b) that such acquisition is needed for the construction of some work, and that such work is likely to prove useful to the public.
(2) Such enquiry shall be held by such officer and at such time and place as the appropriate Government shall appoint.
(3) Such officer may summon and enforce the attendance of witnesses and compel the production of documents, by the same means and, as far as possible, in the same manner as is provided by the Code of Civil Procedure, 1908 (5 of 1908), in the case of a civil Court."
The Government in the impugned Memos dated 8-8-1996 and 12-8-1996 in effect stated that Section 40(1)(aa) of Land Acquisition Act and Section 23 of the Urban Land Ceiling Act are not applicable as the acquisition for the Company was not for "public purpose". But, the learned senior Counsel for the petitioners would submit that the words 'public purpose' has been considered by the Supreme Court in catena of decisions and it was held that a Company undertaking the work which falls within the definition of "public purpose" is also entitled to invoke the provisions of Part-VII. He refers to the decision of the Division Bench of Calcutta High Court in Ram Kumar Agarwalla v. State of West Bengal, , wherein the Division Bench observed as follows:
"The definition of "public purpose" contained in Section 3(0 is an inclusive definition but broadly speaking the expression would include a purpose in which the general interest of the community as opposed to the particular interest of individuals is directly and vitally concerned. The expression has to be given the widest amplitude and any work of which the public can in any way derive benefit whether by the direct use of the work or by the enjoyment of the fruits of the activities carried on there will be a public purpose. In other words, anything which is useful to the public in the sense of conferring some public benefit or conducting to some public advantage is a public purpose. Though the expression 'useful to the public' as occurring in Section 40(1)(b) has to be given a narrow meaning and has to be limited to works which are directly useful to the public, there can be no doubt that the establishments such as students' home, publication department, Guest Houses and pathsala which are sought to be set-up come within the expression 'public purpose' even though it is assumed that such purposes cannot be said to be directed useful to the public."
In State of West Bengal v. Surendra Nath Bhattacharya, , the Supreme Court observed that the term public purpose cannot be interpreted in a restricted sense and takes colour from the nature of the industry itself, the articles that it is manufactured and the benefit to the people that it subserves. The Supreme Court observed thus:
"The words 'public purpose' are not to be interpreted in a restricted sense but takes colour from the nature of the industry itself, the articles that it manufactures and the benefit to the people that it subserves. The land should be acquired for building or work which serve the public purpose of the Company and not public purpose as it is generally understood. In the instant case, the articles produced by the Company which is carrying on business of manufacturing sodium silicate and plaster of pans are used for the benefit of the people and it saves lot of foreign exchange, it is unmistakably for the general good of the country particularly from the economic point of view. In these circumstances, it cannot be said that the object of the Company is extending its operations by enlarging the area of its production was not for the public purpose of the company. Taking an overall picture of the nature of the products of the Company, its various activities, the general public good that it seeks to achieve and the great benefit that the people derive, it cannot be said that the acquisition, in the present case, was not for a public purpose. According to the test laid down by this Court, it is sufficient if it is shown that the building sought to be built or the work undertaken subserves the public purpose of the Company which is completely fulfilled in this case."
13. In the case reported in Keshav Pal v. State of Bihar, , the Division Bench while interpreting the words 'public purpose' in Section 40(1 )(aa) of Land Acquisition Act observed as follows:
"Where a Company has been constituted for providing houses to its members who are homeless persons, such work is for a public purpose. Therefore, State Government can grant consent to the Company, for acquisition of land for construction of houses, under Section 40(1)(aa). The words "public purpose" in Clause (aa) should not be used in a restricted sense. Under Clause (aa) of Section 40(1), it is not necessary that the work should be useful for the general public. The members of a Company are part of the general public. This type of work also can be held for a public purpose within the purview of Section 40(1)(aa) of the Act."
14. In R.L. Arora v. State of Uttar Pradesh, , the interpretation of the words were came up for consideration before the Supreme Court and in that regard, the Supreme Court for majority held thus:
"If the language used is capable of only one construction and fails to carry out the intention of Parliament when making the amendment, the amendment may have to be struck down if it contravenes a constructional provision. A literal interpretation is not always the only interpretation of a provision in a statute and the Court has to look at" the setting in which the words are used and the circumstances in which the law came to be passed to decide whether there is something implicit behind the words actually used which would control the literal meaning of the words used in a provision of the statute. It is permissible to control the wide language used in a statute if that is possible by the setting in which the words are used and the intention of the law making body which may be apparent from the circumstances in which the particular provisions came to be made.
It may be conceded that on a literal construction of Section 40(1) (aa) of the Land Acquisition Act the adjectival clause, namely, which is engaged or is taking steps for engaging itself in any industry or work which is for a public purpose", qualifies the word 'Company' and not the words "building or work" for the construction of which the land is needed. So prima facie it can be argued with some force mat all mat Clause (aa) requires is that the Company for which land is being acquired should be engaged or about to be engaged in any industry or work which is for a public purpose and it is not required that the building or work, for the construction for which land is acquired should be for such public purpose. The clause however bears another construction also. The words "building or work" used in Clause (aa) take their colour from the adjectival clause which governs the Company for which the building or work is being constructed and acquisition under this clause can be only be made where the Company is engaged or is taking steps to engage itself in any industry or work which is for a public purpose, and the building or work which the Company is intending to construct is of the same nature, namely, that it is a building or work which is meant to subserve the public purpose of the industry or work for which it is being constructed. It is only in these cases where the Company is engaged in an industry or purpose of that kind, which is a public purpose, that acquisition can be made under Clause (aa). The public purpose of the Company for which acquisition is to be made cannot be divorced from the purpose of the building or work and it is not open for such a Company to acquire land under Clause (aa) for a building or work which will not subserve the public purpose of the Company. Therefore, in the setting in which Clause (aa) appears and in the circumstances in which it came to be enacted, a literal and mechanical construction is not the only construction of this clause and that there is another construction which is a better construction, and which is that the public purpose of the Company is also implicit in the purpose of the building or work which is to be constructed for the Company and it is only for such work or building which subserves the public purpose of the Company that acquisition under Clause (aa) can be made. It is well settled that if certain provisions of law constructed in one way of will be consistent with the constitution, and if another interpretation would render them unconstitutional, the Court would lean in favour of the former construction. The second is the better construction of Clause (aa) taking into account the setting in which it appears and the circumstances in which it came to be enacted and the words used therein. If that is the true construction of Clause (aa) it cannot be said to contravene Article 31(1), for the public purpose required therein is present where land is required for the construction of a building or work which must subserve the public purpose of the industry of work in which a Company is engaged or is about to be engaged, Nor can it be said that the provision is hit by Article 19(1)(f) for it would be a reasonable restriction on the right to hold property. The clause so interpreted is not unconstitutional. The amendments in Section 41 are only consequential to the insertion of clause (aa) in Section 40(1) and would therefore, be equally valid and constitutional."
15. The learned Counsel would further submit that when the Government has taken a decision to acquire the land and directed the Collector to take steps to publish notice under Section 4(1) of Land Acquisition Act, it cannot withdraw the same, it has to consider the prejudice that will be caused to the Company. In that connection, in State Government Houseless Harijan Employees' Association v. State of Karnataka, (2001) 1 SCC 610, the Supreme Court observed as follows:
"But as far as the beneficiary of the acquisition is concerned there is no similar statutory provision. In contrast with the owners' position the beneficiary of the acquisition may by withdrawal from the acquisition suffer substantial loss without redress particularly when it may have deposited compensation money towards the cost of the acquisition and the steps for acquisition under the Act have substantially been proceeded with. An opportunity of being heard may allow the beneficiary not only to counter the basis for withdrawal, but also, if the circumstances permit, to cure any defect or shortcoming and fill any lacuna."
16. The learned senior Counsel for the petitioners also submits that it is always open for this Court to pass appropriate Orders in order to balance the competing interest namely public interest and private interest. In that regard, the Supreme Court in Ramniklal N. Bhutta v. State of Maharashtra, , held as follows:
"Whatever may have been the practices in the past, a time has come where the Courts should keep the larger public interest in mind while exercising their power of granting stay/injunction. The power under Article 226 is discretionary. It will be exercised only in furtherance of interests of justice and not merely on the making out of a legal point. And in the matter of land acquisition for public purposes, the interests of justice and the public interest coalesce. They are very often one and the same. Even in a civil suit, granting of injunction or other similar orders, more particularly of an interlocutory nature, is equally discretionary. The Courts have to weigh the public interest vis-a-vis the private interest while exercising the power under Article 226 indeed any of their discretionary powers. It may even be open to the High Court to direct, in case it finds finally that the acquisition was vitiated on account of non-compliance with some legal requirement that the persons interested shall also be entitled to a particular amount of damages to be awarded as a lumpsum or calculated at a certain percentage of compensation payable. There are many ways of affording appropriate relief and redressing a wrong; quashing the acquisition proceedings is not the only mode of redress. To wit, it is ultimately a matter of balancing the competing interests. Beyond this, it is neither possible nor advisable to say."
17. In the instant case the petitioner is a Public Limited Company and one of the objects is to acquire the land through the process of land acquisition and to construct the houses to weaker sections apart from other objects. Therefore, it cannot be said that the acquisition would not be for public purpose and would not fall under Section 40(1)(aa) of the Land Acquisition Act. The decisions of the Supreme Court are very clear that the word 'public purpose' ought to be given liberal meaning to subserve the cause. The case decided by the Division Bench of Patna High Court fully covers the situation. Even under Section 23 of the Urban Land Ceiling Act it held that the Governing test for disposal of excess land should be social good and should subserve the purpose. The Supreme Court observed in that regard as follows:
"Section 23 is valid and does not suffer from any constitutional infirmity. The disposal of excess vacant lands must be made strictly in accordance with the mandate of Sub-section (4) of Section 23, subject to this, that in a given case such land may be allotted to any person, for any purpose relating to, or in connection with, any 'industry' or for the other purposes mentioned in Sub-section (1), provided that by such allotment, common good will be subserved. The governing test of disposal of excess land being 'social good', any disposal in any particular case or cases which does not subserve that purpose will be liable to be struck down as being contrary to the scheme and intendment of the Act. Private property cannot under our Constitution be acquired or allotted for private purposes though an enabling power like that contained in Sub-section (1) of Section 23 may be exercised in cases where the common good dictates the distribution of excess vacant land to an industry, as defined in Clause (b) of the Explanation to Section 23."
It further observed:
"Part IV, which seeks to build a Social Justice Society is basic to our constitutional Order. Any transgression of Article 39(b) and (c) is beyond the scope of Section 23(1) and disposal of land thereunder must subserve the common good and not the reverse. This limitation on the wide words of Section 23(1) is a matter of semantics and reading down meanings of words with loose lexical amplitude is permissible as part of the judicial process. To sustain a law by interpretation is the rule. To be trigger-happy in shooting at sight every suspect law is judicial legicide. Courts can and must interpret words and read their meanings so that public good is promoted and power misuse is interdicted. Even the crude drafting of Section 23 (4) by the unwanted 'subject to' will not whittle down the power, why the obligation, to distribute vacant land, not according to personal, political or official fancy but strictly geared to the good set down in Article 39(b) and (c)."
18. Therefore, the Government failed to consider the meaning assigned to the words "public purpose" with reference to Section 40(1)(aa) of the Land Acquisition Act. From perusal of various documents right from issuance of G.O. Ms. No.103, it is clear that the Government was determined to allot the land on payment of value as fixed by the appropriate authorities. But, in such a situation, it would not be open for the Government to resile from the commitment already made to the petitioner Company on the premise that the acquisition did not fall within the category of "public purpose."
19. Under those circumstances, 1 am satisfied that the matter requires reconsideration keeping in view the dicta laid down by the Supreme Court in various cases and also other High Courts referred to above.
20. Accordingly, the Writ Petition No.19065 of 1996 is allowed and the reasons assigned in Memo No.26509/LA.I/96.3, dated 12-8-1996 and Memo No.26510/LA.I/ 96-4, dated 8-8-1996 and consequential G.O. Ms. No.658, dated 9-9-1996 and G.O. Ms. No.725, dated 16-12-1995 are set aside and the matter is remitted back to the Government for fresh consideration.
21. The Government shall now consider the matter in the wake of the decisions referred to above and pass appropriate Orders. The Government shall also grant personal hearing if sought for by the petitioner.
22. This exercise shall be done within a period of three months from the date of receipt of a copy of this order.
23. In view of the orders passed in Writ Petition No.19065 of 1996, no orders are necessary in Writ Petition No.22778 of 1996. Accordingly, the writ petition is closed. No costs.