Andhra HC (Pre-Telangana)
Kalakoti Siva Reddy And Others vs The District Collector, Krishna At ... on 14 September, 2012
Bench: Pinaki Chandra Ghose, Vilas V. Afzulpurkar
THE HON'BLE THE ACTING CHIEF JUSTICE SRI PINAKI CHANDRA GHOSE AND THE HON'BLE SRI JUSTICE VILAS V. AFZULPURKAR
WRIT APPEAL NO.941 OF 2010
14-9-2012
Kalakoti Siva Reddy and others
The District Collector, Krishna at Machilipatnam and others.
COUNSEL FOR PETITIONER: Sri M.V. Durga Prasad
COUNSEL FOR RESPONDENT NOs.1 & 3: G.P. FOR LAND ACQUISITION
COUNSEL FOR RESPONDENT NO.2: SMT. K. ARUNA COUNSEL FOR RESPONDENT NOs.4 to 6:
G.P. FOR ROADS AND BUILDINGS
COUNSEL FOR RESPONDENT NOs.7 TO 43: SRI B.V. SUBBAIAH
<GIST
>HEAD NOTE:
? CITATIONS: 1. (2011) 3 SCC 1
2. (2007) 6 SCC 292
3. AIR 2006 SC 898
4. AIR 2005 SC 3520(1)
5. (2012) 2 SCC 327
6. (1975) 4 SCC 285
7. (1999) 2 SCC 384
8. (2010) 7 SCC 129
JUDGMENT:(per the Hon'ble the Acting Chief Justice) This appeal is directed against the order dated 21st September, 2010 passed in Writ Petition No.2153 of 2010, whereby the learned Single Judge dismissed the writ petition filed by the writ petitioners/appellants.
2) The writ petition was filed seeking a writ of mandamus declaring the notifications issued under Section 4(1) of the Land Acquisition Act (for short, 'the LA Act') dated 3.2.2009, published in the newspapers on 9.2.2009, and the declaration under Section 6 of the Act dated 8.9.2009 issued by respondent No.1 as illegal, arbitrary, mala fide, contrary to law and violative of the principles of natural justice, and against the Zonal Development Plan and Master Plan prepared under the Andhra Pradesh Urban Areas (Development) Act, 1975 (for short, 'the Urban Areas Development Act'). Under the said notifications, the first respondent sought to acquire the lands admeasuring Ac.34.83 cents situated in different survey numbers of Nunna Village, Vijayawada Rural Mandal, Krishna District.
3) The learned Single Judge dismissed the writ petition holding that the impugned acquisition proceedings are not illegal on the ground of the alleged contravention of the provisions of the Urban Areas Development Act and non- compliance with the provisions of Section 5-A of the LA Act.
4) On 26.11.2010, a Division Bench of this Court admitted the writ appeal and directed status quo to be maintained on the submission made by the learned Government Pleader that no work has started as yet. Subsequently, on 29.4.2011, the interim order of status quo was vacated. Thereupon, the appellants herein approached the Supreme Court by filing Special Leave to Appeal (C) Nos.16554- 16556 of 2011. While issuing notice on the said petitions, on 25.7.2011, the Supreme Court directed to maintain status quo obtaining as on that date. Subsequently, on the applications filed by the unofficial respondents herein for a direction to pass the Award, the Supreme Court observed that there was no stay operating with regard to passing of the Award and that the same may be passed in accordance with the provisions of the LA Act. Pursuant to the directions of the Supreme Court, the Award was passed on 6.2.2012 during the pendency of this appeal.
5) In this appeal, among other questions, we are required to consider the question whether the proceedings initiated under the LA Act for acquisition of the lands in question are valid in the teeth of the provisions of the Urban Areas Development Act.
6) Sri M.V. Durga Prasad, learned counsel for the appellants submitted that the respondent authorities are acquiring the agricultural lands of the appellants for the purpose of bypass road leaving the lands earmarked for the said road under the Zonal Development Plan which was prepared by the second respondent Urban Development Authority after necessary civic survey and approved by the Government in accordance with the provisions of the Urban Areas Development Act vide G.O.Ms.No.676, Municipal Administration & Urban Development (I-2) Department, dated 29.12.2006. He submitted that respondent Nos.7 to 43 herein are not affected by the impugned acquisition proceedings and they are set up by the real estate speculators, who influenced the R & B Department to lay the bypass road contrary to the Zonal Development Plan. In the joint meeting convened by the District Collector, acquisition of the lands in question was opposed by the second respondent Urban Development Authority and also the District Collector, as deviation from the Zonal Development Plan violates the mandatory provisions of the Urban Areas Development Act besides incurring higher cost for acquisition of agricultural lands, and yet the R & B Department insisted for acquisition and sanctioned Rs.10 Crores, which is insufficient for acquisition of the land itself.
7) Placing reliance on the judgments of the Supreme Court in Girnar Traders (3) v. State of Maharashtra1 and State of Punjab v. Sanjeet Singh Grewal2, the learned counsel submitted that the special provisions for acquisition under the Urban Areas Development Act exclude the operation of the LA Act and this question was not answered by the learned Single Judge. He submitted that the bypass road is provided in the zonal development plan and any acquisition for such purpose shall be only in accordance with Section 18 of the Urban Areas Development Act and this aspect of the matter was not considered by the learned Single Judge. He further submitted that change of land user is not permissible except in accordance with Section 12-A of the said Act and the same is mandatory in view of the judgment of the Supreme Court in K.K. Bhalla v. State of M.P.3 and there is no such move on behalf of the respondent authorities.
8) The learned counsel further submitted that the National Highways Authority of India is grounding the project of the bypass road covering Nunna Village, therefore, there is no justification for the impugned acquisition as it is a sheer waste of public funds and valuable agricultural lands.
9) Lastly, the learned counsel contended that no enquiry under Section 5-A of the LA Act was conducted as alleged and no opportunity of personal hearing was given. He submitted that Section 5A confers a valuable right and having regard to the provisions contained in Article 300-A of the Constitution, it is akin to a fundamental right. He has placed reliance on the judgments of the Supreme Court in Hindustan Petroleum Corpn. Ltd. v. Darius Shapur Chenai4 and Darshan Lal Nagpal v. Govt. (NCT of Delhi)5.
10) Per contra, the learned Government Pleader for Land Acquisition submitted that there is no merit in the contention of the petitioners that the formation of the bypass road is contrary to the approved zonal development plan. The Government approved the formation of bypass road and accordingly the District Collector issued the notification under Section 4(1) of the LA Act. He submitted that the Government can acquire any property under the LA Act for a valid public purpose and the same cannot be questioned on the ground of alleged contravention of the provisions of the Urban Areas Development Act. In this case, the R & B Department has requisitioned for acquisition of the lands in question and not the Urban Development Authority, and no provision in the said Act prohibits such acquisition invoking the provisions of the LA Act. He placed reliance on the judgments of the Supreme Court in Aflatoon v. Lt. Governor of Delhi6 and Bhagat Singh v. State of U.P.7
11) Rebutting the allegation that the alignment of the bypass road proposed by the Urban Development Authority has been changed at the instance of real estate speculators, the learned Government Pleader submitted that the Government approved the alignment proposed by the R & B Department after examining the feasibilities of both the alignments and after considering the report submitted by the Engineer-in-Chief, R & B Department, and no malafides can be attributed to the same.
12) The learned Government Pleader submitted that the appellants herein appeared for enquiry under Section 5A of the LA Act on 12.3.2009 and filed their objections, their statements were recorded during their enquiry and they were given personal hearing also. Out of 110 land owners, only 23 persons raised objection for acquisition of the land for the purpose of bypass road. The District Collector considered the objections raised by the appellants and others and passed orders on 12.8.2009 and they were served with the same. The appellants also appeared for the award enquiry held on 30.10.2009 and claimed compensation. The Award was passed on 6.2.2012 fixing the market value at Rs.4 lakhs per acre, however, possession of the lands was not taken in view of the orders of status quo passed by the Supreme Court.
13) Sri B.V. Subbaiah, learned counsel appearing for respondent Nos.7 to 43 while supporting the arguments advanced by the learned Government Pleader submitted that the appellants are concerned only with Ac.5.94 cents out of the total land sought to be acquired, and having regard to the fact that a large chunk of land has already been taken possession by the respondent authorities, the appellants cannot have any objection for the acquisition.
14) Section 18 of the Urban Areas Development Act, which is relevant for the purpose, may be extracted as under:
"18: Compulsory acquisition of land:- (1) If, in the opinion of the Government, any land is required for the purpose of development or for any other purpose under this Act, the Government may acquire such land under the provisions of the Land Acquisition Act, 1894.
(2) Where any land has been acquired by the Government they may, after they have taken possession of the land, transfer the land to the Authority or any local authority for the purpose for which the land has been acquired on payment by the Authority or the local authority of the compensation awarded under that Act and of the charges incurred by the Government in connection with the acquisition."
A reading of the above provision makes it clear that the Government may acquire any land if it is required for development or for any other purpose under the Urban Areas Development Act by invoking the provisions of the LA Act. As argued by the learned counsel for the petitioners, there is no inhibition in any of the provisions of the Urban Areas Development Act preventing the Government from invoking the provisions of the LA Act.
15) In Girnar Traders case, a Constitution Bench of the Supreme Court was considering the scheme of the Maharashtra Regional and Town Planning Act, 1966 (MRTP Act), on a reference made to it. Section 125 of the said Act deals with compulsory acquisition of land needed for purposes of regional plan, development or town planning schemes etc. Section 126 provides for acquisition of land required for public purposes specified in plans on an application to the State Government for acquiring such land under the LA Act. Section 128 deals with the powers of the State Government to acquire land for purposes other than the one for which it is designated in any plan or scheme, which is quite distinct and different from any of the provisions in the LA Act. The provisions of Section 129 are in pari materia with the provisions of Section 17 of the LA Act. Most of the provisions of the LA Act, with alteration in the language, have been specifically stated under the provisions of the MRTP Act itself, and the substantive provisions of the LA Act are not applicable to the MRTP Act which is a self-contained code except to the extent that provisions of Section 9 to 11 of the LA Act be brought into it for the limited purpose of acquiring land. Analysing the provisions of the LA Act and the MRTP Act, the Supreme Court held that the MRTP Act is a self-contained code and that the provisions introduced in the LA Act, 1894 by Central Act 68 of 1984, limited to the extent of acquisition of land, payment of compensation and recourse to legal remedies provided under the said Act, can be read into an acquisition controlled by the provisions of he MRTP Act, except Section 11-A of the LA Act. The Supreme Court also observed that the schemes under the two Acts are distinct and different and the provisions of the LA Act relating to acquisition of land alone, for which there are no specific provisions under the State Act, would be applicable to the acquisition under the State Act. The same view was taken by a three-Judge Bench in Bondu Ramaswamy v. Bangalore Development Authority8.
However, a reading of the provisions of the Urban Areas Development Act makes it clear that there is no provision akin to the one in the MRTP Act relating to acquisition. Section 18 of the Urban Areas Development Act provides that the Government may acquire any land if it is required for the purpose of development or for any other purpose under the said Act, under the provisions of the LA Act, and transfer the said land to the Urban Development Authority. Under Section 18-A of the said Act, if the Urban Development Authority proposes to acquire any land otherwise than under the provisions of the LA Act i.e. by private negotiations, it shall obtain the previous approval of the District Collector, who shall determine the value at which the land is to be acquired, and every such acquisition shall be subject to previous sanction of the Government. As can be seen, there is no provision relating to acquisition of land except as provided under Sections 18 and 18-A, relatable to the provisions in the MRTP Act. Therefore, the contention of the learned counsel for the petitioners that the special provisions under the Urban Areas Development Act exclude the operation of the provisions of the LA Act is liable to be rejected.
16) In Sanjeet Singh Grewal's case, certain provisions of the Punjab Regional and Town Planning and Development Act, 1995 relating to declaration of planning areas and designation of planning agencies, came up for consideration before the Supreme Court. The Supreme Court observed that the legislature having enacted a statute and expressly provided a procedure for declaration of a planning area, the State could not have adopted a different procedure in breach of express provisions, and held that the declaration of the planning area was never validly made by the competent authority after following the procedure and, therefore, there was in law no validly selected site for a new town, and consequently, there was no justification for acquisition of land to set up a new town.
As contended by the learned counsel for the petitioners, the facts in the above case have no application to the present set of facts and, therefore, the above decision has no application.
17) In K.K. Bhalla's case, the Supreme Court was considering whether the allotment of land for the purpose of an industry was in contravention of the master plan in which it was earmarked for public/semi-public use. We are, therefore, in agreement with the Hon'ble Single Judge that the question of validity of acquisition proceedings under the LA Act on the ground of alleged contravention of the Development Act did not fall for consideration in the said decision, and hence has no relevance to the facts of this case.
18) In this case, the Government approved the master plan for VGTM Urban Area vide G.O.Ms.No.144, Municipal Administration & Urban Development Department, dated 3.3.1988 as per Section 9 of the Urban Areas Development Act. The Government also approved the Zonal Development Plan and Zoning Regulations of Nunna Zone vide G.O.Ms.No.676, Municipal Administration & Urban Development Department, dated 29.12.2006. Vide proceedings dated 3.10.2000, the Government granted administrative sanction for formation of bypass road through private agencies under Built Operate Transfer (BOT) Scheme. However, the work could not be executed. Thereafter, vide G.O.Rt.No.191, Transport, Roads & Buildings (Roads. VI) Department, dated 23.2.2007, the Government granted a fresh administrative sanction. After examining the feasibilities including technical and economical aspects, the Government vide Memo dated 6.8.2007 permitted the R & B Department to undertake the work of formation of bypass road as per the alignment proposed by the said Department. As seen from the record, the approval of the Government is not mechanical. This was based on the report of the Superintending Engineer, R & B Department, Vijayawada, which was forwarded by the Chief Engineer, R & B by his letter dated 9.7.2007. The factors which weighed with the Government for granting approval to the alignment proposed by the R & B Department were that the cost of the project is comparatively less though the land to be acquired in this alignment is more than that of the alignment proposed by the Urban Development Authority; the curves are less in number which are necessary in the point of road safety, etc.
19) Merely because a separate enactment is in place as regards development of an area, the Government, which is the competent authority in all respects, is not powerless to direct the Urban Development Authority to carry out the directions issued by it. As noticed above, the Government, after considering all the feasibilities, preferred and approved the alignment proposed by the R & B Department and accordingly proceedings under the LA Act had been initiated. In our view, keeping in mind the larger public interest, the Government granted sanction for formation of bypass road in conformity with the provisions of the Urban Areas Development Act and not in derogation of the provisions of the said Act. Any procedural and other technicalities, which are trivial in nature, should not come in the way of development. Therefore, no malafides can be attributed to the action of the Government in acquiring the lands of the appellants.
20) In the view we have taken, it is not necessary to refer to the other judgments cited by the learned counsel for the appellants, and we hold that the proceedings initiated under the LA Act for acquisition of the lands in question are legal and valid.
21) As regards the enquiry under Section 5A of the LA Act, it is contended by the learned Government Pleader that except appellant No.8, all other appellants appeared for the enquiry on 12.3.2009 before the Land Acquisition Officer & Sub- Collector and filed their objections, their statements were recorded and they were given personal hearing. The District Collector, after considering the objections, passed an order on 12.8.2009 overruling the objections. The appellants also participated in the award enquiry conducted on 30.10.2009. The mere assertion in the reply filed by the appellants that enquiry under Section 5A was not conducted as per Rules cannot be accepted without there being any material rebutting the same. Therefore, the reliance on the judgment in Hindustan Petroleum Corpn. by the learned counsel for the appellants is misplaced.
The judgment in Darshan Lal Nagpal can be distinguished on facts. In that case, the Supreme Court was considering the question whether there was any justification for invoking the urgency provisions contained in Section 17(1) and (4) of the LA Act.
22) It is submitted by the learned counsel for the appellants that the National Highways Authority of India is grounding a similar project and that the agreement was concluded. He has also a filed a letter dated 6.7.2012. Subsequently, through WAMP.No.1636 of 2012 filed on 3.7.2012, the appellants have filed the notification dated 25.11.2011 issued by the Ministry of Road Transport and Highways, Government of India, proposing to acquire lands on National Highway No.5 (Gundugolanu - Vijayawada Highway Section) from 16.000 km. to 33.050 km. As seen from the record, the bypass road in question starts at 10.600 km. and ends at 16.000 km. on Vijayawada - Nuzvid Road. Therefore, this cannot be a ground to invalidate the impugned acquisition proceedings as they had commenced long back and award is also passed.
23) Indisputably, the formation of bypass road for which the lands in question are sought to be acquired is in the larger interest of the community and, therefore, the same should be regarded as a public purpose. Once the Government satisfies about the public purpose and initiates proceedings for acquisition of land, the same cannot be held to be vitiated merely on the ground that the same is in contravention of the Urban Areas Development Act. In our opinion, there is no violation of the provisions of the Urban Areas Development Act as the Government, which is the competent authority, after considering all the feasibilities, approved the alignment of the bypass road proposed by the R & B Department.
24) In Aflatoon's case, one of the arguments advanced on behalf of the petitioners/appellants was that the planned development of Delhi was vague as neither a Master Plan nor a Zonal Plan was in existence on the date of the notification, and, therefore, the acquisition of property was illegal. Rejecting the contention, the Supreme Court observed that there was no inhibition in acquiring land for planned development of Delhi under the provisions of the LA Act before the Master Plan was ready, and that the Central Government could acquire any property under the LA Act. The language of Section 15 of the Delhi Development Act, 1957 runs on the same lines as Section 18 of the Urban Areas Development Act. Under the said provision, the Central Government may acquire any land under the provisions of the LA Act and transfer the same to the Development Authority for the purpose for which it was acquired. Section 12 of the Delhi Development Act deals with planned development and it has nothing to do with acquisition of property. Whereas, under Section 18 of the Urban Areas Development Act, the State Government is empowered to initiate proceedings under the LA Act for acquisition of the lands in question. Section 18 confers very wide powers on the Government to acquire the land either for the purpose of development or for any other purpose under the Act. According to Section 12(2) of the Urban Areas Development Act, the Government may suo motu or on a reference from the Authority make any modifications to the plan, by following the procedure prescribed therein.
Further, though the A.P. Urban Areas (Development) Act, 1975 is a self-contained code relating to the matters of development, preparation of master plan and zonal development plans etc., there is no provision or standard procedure to be followed for acquisition of lands either in the Act or in the Rules of 1977 made thereunder. Therefore, we have to necessarily fall back on the LA Act.
25) In Bhagat Singh's case, the Supreme Court, following the judgment in Aflatoon's case, held that there is no rule that the land proposed to be acquired by the Government for a particular public purpose should be for the same purpose or use mentioned in the Master Plan or Zonal Plan for the said area; nor will the acquisition be invalid merely because the land proposed to be acquired is for a purpose other than the one permitted by the Master Plan or Zonal Plan applicable to that locality.
26) In view of the above discussion, we find no ground to interfere with the order under appeal. The appeal is accordingly dismissed. All the miscellaneous applications stand disposed of. No costs.
27) As noticed above, Award No.1 of 2012 has been passed by the Land Acquisition Officer on 6.2.2012. However, possession of the lands has not been taken in view of the orders of status quo passed by the Supreme Court. Now that the appeal is disposed of, the Land Acquisition Officer may proceed to take possession of the lands in question.
___________________________ PINAKI CHANDRA GHOSE, ACJ ________________________ VILAS V. AFZULPURKAR, J.
14th September, 2012.