Andhra HC (Pre-Telangana)
Church Missionary Society vs Government Of Andhra Pradesh And Ors. on 2 December, 2003
Equivalent citations: 2004(1)ALD392, 2004(4)ALT204
Author: L. Narasimha Reddy
Bench: L. Narasimha Reddy
ORDER L. Narasimha Reddy, J.
1. The petitioner challenges the notification issued by the 2nd respondent under Section 4(1) of the Land Acquisition Act (for short 'the Act') published on 29-9-2003 and the other proceedings pursuant thereto. Through the said notification, the 2nd respondent proposed to acquire an extent of Ac.22.85 cents in Sy.No.3/lB of Pinapaka Village, G.Konduru Mandal, Krishna District. The petitioner claims that it had acquired the land referred to above several decades ago, and is in possession and enjoyment of the same. The petitioner alleges that the land is sought to be acquired for the benefit of M/s. G.V.K. Group of Industries, a private limited company (for short 'the Company').
2. Petitioner contends that it is impermissible for respondents 1 to 3 to acquire the land for the benefit of a private company, without following the procedure prescribed under Part VII of the Act. It alleges that one of the requirements in this regard is that the agreement entered into between the Government, on one hand, and the Company for whose benefit the land is acquired, on the other, has to be published in the official Gazette, as required under Section 42 of the Act. It is alleged that no such publication has been made. The petitioner also challenges the action of Respondents 1 to 3 in dispensing with the enquiry under Section 5A of the Act.
3. During the pendency of the writ petition, errata has been issued by the 2nd respondent, to the effect that the land is required for the benefit of A.P. Industrial Infrastructure Corporation Limited, Hyderabad, the 4th respondent. Challenge is made to the said errata also, by alleging that an effort is made by respondents 1 to 3 to justify an otherwise unsustainable action. It is stated that once the land is acquired for the benefit of the Company, mere lending the name of the 4th respondent does not render the proceedings valid.
4. In the counter-affidavit filed on behalf of respondents 1 to 3, it is stated that the land was initially sought to be acquired for the benefit of M/s. Bharat Petroleum Corporation Limited, for establishing an industry. It is alleged that since they did not evince further interest, the 4th respondent has come forward to establish an industrial park in the land. An extent of Ac.28.35 cents is said to have been identified and that the present acquisition is confined to Ac.22.85 cents. Several contentions are advanced as regards the entitlement of the petitioner and certain internal disputes between various organizations. The allegation that the land is acquired exclusively for the benefit of the Company is disputed. It is stated that mentioning the name of the Company in the Notifications under Sections 4(1) and 6 of the Act is a mistake and the same has been rectified by issuing errata. They contend that at once the acquisition of the land is for the benefit of the 4th respondent, which is a Government Company, the question of following the procedure prescribed under Part VII of the Act, particularly, the one under Sections 40, 41 and 42, does not arise. The enquiry under Section 5-A is said to have been dispensed with, on account of the urgency involved in the matter.
5. Similar contentions are raised on behalf of respondent No. 4 and other respondents, who have supported the acquisition.
6. Respondents 5 to 8, who got themselves impleaded, challenged the acquisition on the same grounds, as did the writ petitioner.
7. Sri P. Venu Gopal, learned Counsel for the petitioner, submits that acquisition in question is in colorable exercise of power. He submits that, in clear terms, the 2nd respondent issued notifications under Sections 4(1) and 6 of the Act, stating that the land is being acquired for the benefit of the Company, and still the procedure prescribed under Part VII of the Act was not followed. He submits that an attempt was made to justify the acquisition by issuing errata. According to him, once the basic and initial purpose of acquisition was for the benefit of a company, mere lending or insertion of the name of the 4th respondent does not change the character of acquisition. He submits that the only opportunity of ventilating the grievance of the petitioner has been denied by the 2nd respondent, by dispensing with the enquiry under Section 5A, without there being any legal or factual basis. He relied upon certain decided cases, in support of his contentions.
8. Learned Government Pleader for Land Acquisition, and Sri R. Subba Rao, learned Standing Counsel for the 4th respondent, on the other hand, submit that the land is being acquired for the benefit of the 4th respondent and a part of it may be allotted to the Company. They contend that mentioning of the name of the Company in the notifications was on account of a mistake and that the same has been rectified by issuing errata. Relying upon the judgments of the Supreme Court, they submit that the question as to whether there exists any public purpose in acquisition has to be decided on the basis of the declaration and surrounding circumstances and that broader view needs to be taken in this regard. They justify the invocation of urgency clause under Section 17(4) of the Act on the ground that the land was required urgently, for the purpose of establishing industries. The challenge in this writ petition is to the acquisition of an extent of Ac.22-85 cents of land in Sy.No.3/lB of Pinapaka Village, G. Konduru Mandal, Krishna District. The petitioner claims to be the owner of the said land. Though certain submissions are made by various parties touching on the entitlement of the petitioner for the land, this Court is not concerned with the dispute as to the title in respect of the said land. Even a person, whose entitlement to the land is in dispute, is competent to challenge the proceedings initiated for acquisition of the land.
9. The main ground of challenge to the acquisition is that it is tainted with the vice of colourable exercise of power. The basis for such contention is that the land was needed for the benefit of a private company and the machinery of the State had invoked its eminent domain to advance the interests of such a Company that too, without following the procedure prescribed under Part VII of the Act.
10. The notifications which were initially issued under Sections 4(1) and 6, described the purpose of acquisition as under:
"the land specified ..... is needed or likely to be needed for a public purpose, to wit, for the project being constructed by M/s. GVK Group of Industries."
It is not in dispute that the agency for which the land was sought to be acquired is a private limited Company, which comes within the definition of a Company under Section 3(e) of the Act, and not a Corporation owned or controlled by the State, as defined under Section 3(cc) of the Act. That being the case, it was obligatory on the part of respondents 1 to 3 to follow the procedure prescribed in Part VII of the Act. One of the important requirements in this regard is, the existence of an agreement between such Company and the appropriate Government, as provided for under Section 41 and publication of the same in the Gazette under Section 42 of the Act. It is not disputed that no such agreement exists, much less it was published.
11. In their original forms, the notifications under Sections 4(1) and 6 did not leave any doubt as to the agency for which the land is sought to be acquired. Obviously, to overcome this hurdle, the respondents issued errata. Through the said errata, the 4th respondent is shown in the place of GVK Industries. The notifications, therefore, have to be examined as modified through the errata.
12. If any radical and substantial changes in the whole context of the matter were brought about through the errata, it would have been difficult to accept the contention of the learned Counsel for the petitioner. However, if the entire state of affairs remained the same and the errata brings about only cosmetic change to the proceedings, different considerations altogether would ensue. This Court is conscious of the settled principles of law that the statement of purpose by the acquiring agency is to be taken on its face value, except where a further examination discloses the purpose to be otherwise. It is in this context that the concept of colourable exercise of power gets attracted. In a way, it overlaps with the concepts of 'exercise of power for improper purpose', 'mala fide exercise of power' and some times that of 'exercise of power for irrelevant or extraneous considerations' also. It would depend on the nature of powers conferred under the relevant statute and the circumstances under which it is exercised.
13. The concept came to be invoked in relation to the proceedings under the Act in vast majority of the cases on the subject. In Srinivasa Co-operative House Building Society v. Madam Gurumurthy Sastry, , the Supreme Court aptly coined it as under:
"When an act is done by the State under colour of authority of law, it must be for the lawful purpose envisaged under the Act. If the purpose, namely, public purpose envisaged under the Act is not served then the exercise of the power of the declaration under Section 6 must be held to be colourable exercise of the power, though not with evil motive...."
In the context of adding finality to the declaration by the Government as to the purpose of acquisition, the Supreme Court did carve out an exception to it. This again was with reference to the concept of colourable exercise of power. In Bajirao T. Kote v. State of Maharashtra, , it was held as under:
"If the purpose for which the land is being acquired by the State is within the legislative competence of the State, the declaration of the Government will be final subject, however, to one exception. That exception is that if there is a colourable exercise of power the declaration will be open to challenge at the instance of the aggrieved party. If it appears that what the Government is satisfied about is not a public purpose but a private purpose or no purpose at all, the action of the Government would be colourable as not being relatable to the power conferred upon it by the Act and its declaration will be a nullity. Subject to this exception the declaration of the Government will be final."
There are several decisions, which almost emphasised these aspects of the matter. They are not referred to, to avoid prolixity.
14. On application of these principles, the present case has to be proceeded with, as if the purpose declared by the Government is final and conclusive, reserving the examination as to whether the exercise of such power was colourable. Examination into these aspects became more important, in view of the fact that the initial notification discloses the purpose to be for a private Company. Respondents 1 to 3 took themselves to explain that mentioning of the name of the Company was only account of a mistake. It was for this reason, that the relevant file made available by the Government Pleader was perused.
15. The record discloses that initially the land was proposed to be acquired for the benefit of M/s. Bharat Petroleum Corporation Limited (BPCL). Even before the initial and preparatory steps could be taken, M/s. BPCL resiled from the requisition. Thereafter a proposal emanated from M/s. GVK Industries. The said proposal was channelised through the 4th respondent. Different things would have ensued, had it been a case where the 4th respondent proposed to acquire the land for its own purpose and the Company was one of the proposed allottees. That however is not the case. The Executive Director of the 4th respondent addressed a letter dated 30-8-2003, relevant portion of which reads as under:
"As the M/s. BPCL have not deposited the tentative land compensation and have not evinced interest to set up their bottling plant in the subject lands, the Corporation has reviewed the requirement of land vis-a-vis the Industrial Potential of this area and decided to set up an Industrial Park in these lands by itself.
Vide reference 3 cited, I requested you to acquire the patta lands under consent award urgently and inform the Corporation the land compensation payable in this regard. Also I requested you to hand over advance possession of Government land measuring an extent of Acs.1.21 cents at Kowluru Village, Konduru Mandal, Krishna District to the Corporation, pending finalisation of alienation orders by the Government. In fact, the entire land has been sought for allotment by M/s. GVK Group of Industries to set up their Project. Therefore, I request you to complete the LA process for the patta land urgently and hand over advance possession of Government land, pending finalisation of alienation orders."
It was in this context that the notifications under Sections 4(1) and 6 were issued, showing the purpose as the one related to the Company. The notifications have reflected the true state of affairs. Therefore, reference to the Company in the notifications cannot be said to be on account of any mistake.
16. The 4th respondent is an agency to develop industrial estates and to provide infrastructure to the entrepreneurs. It was never intended to be an agency just to procure lands by invoking provisions of the Act. It is not as if the 4th respondent proposed to acquire certain extents of land and had proposed to allot part of it to the Company after developing it. The entire land, which is proposed to be acquired, is sought to be placed at the disposal of the Company, without any development of infrastructure, and without any process of competitive allotment. From this, it is clear that the purpose underlying the acquisition was for the benefit of the company and the irresistible conclusion is that the impugned notifications are tainted with the vice of colourable exercise of power, and that the errata did not bring about any change, worth its name.
17. Even in the context of making a choice between requisition and acquisition of properties, the concept was invoked. In Jiwani Kumar Paraki v. First Land Acquisition Collector, , the Supreme Court held that where the authority is conferred to choose between two courses of action, one of which is advantageous to the citizens, and the circumstances warrant for such a course of action, choosing the other course can be said to be tainted with colourable exercise, or misuse of power. The relevant portion reads as under:
"Where one is repository of two powers that is power of requisition as well as power of acquisition qua the same property and if the purpose can equally be served by one which causes lesser inconvenience and damage to the citizen concerned unless the repository of both the powers suffers from any insurmountable disability, user of one which is disadvantageous to the citizen without exploring the use of the other would be bad not on the ground that the Government has no power but on the ground that it will be a misuse of the power in law."
The analogy becomes relevant in the present case, in the sense, that it was competent for the 1st respondent to acquire the land by invoking Part VII of the Act, but he has chosen to proceed with the acquisition, as though it was for a public purpose.
18. There is another important aspect of the matter. The only remedy available to the owner of a land in the matter of compulsory acquisition, before a declaration under Section 6 is issued, is an enquiry, under Section 5-A of the Act. Such an enquiry would enable the landowner to make an attempt to convince the authorities not to proceed with the acquisition. The ultimate decision may rest with the concerned authorities and the decision taken is not subject to any appeal or revision. Such a limited, but valuable remedy cannot be denied to them except where the acquisition cannot brood the delay of few weeks.
19. The power under Sub-section (4) of Section 17 of the Act to dispense with the enquiry under Section 5-A is to be invoked where the acquisition is so urgent that it cannot wait, till the enquiry under Section 5-A is held. Such a power can be invoked to meet the exigencies, such as, acquisition in the event of rivers changing their courses, areas inundated with floods and lands needed to provide accommodations to public in the event of outbreak of epidemic, etc. It cannot be permitted to be invoked as a matter of course and at the whims and fancies of the agencies for which the land is proposed to be acquired or the acquisitioning authority himself. Neither the purpose nor the circumstances in the present case would justify the invocation of Sub-section (4) of Section 17 and dispensing with enquiry under Section 5-A.
20. Viewed from any angle, this Court does not find that there is any legal or factual basis for the impugned proceedings. The writ petition is accordingly allowed and the impugned proceedings are set aside. It is, however made clear that if respondents 1 to 3 intend to acquire the land for the same purpose, it shall be open to them to do so, by complying with the provisions of Part VII of the Act. No costs.