Supreme Court - Daily Orders
Hyderabad Urban Devt.Auth.(Huda) vs S.B.Kirloskar . on 13 September, 2018
Bench: Arun Mishra, Vineet Saran
1
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL No(s).6451 OF 2016
HYDERABAD URBAN DEVT.AUTH.(HUDA) & ANR. APPELLANTS
VERSUS
S.B.KIRLOSKAR & ORS. RESPONDENTS
WITH
CIVIL APPEAL No(s).8888 OF 2015
CIVIL APPEAL No(s).6452 OF 2016
O R D E R
1. The appeals pose a peculiar situation. On the one hand there is a concept of sustainable development and on the other hand, several changes of alignment were made within a span of one year by the appellants in the matter of acquisition of the land for the construction of Outer Ring Road (in short, ‘the ORR') around Hyderabad and Sikandarabad. This Court vide order dated 16.10.2015 permitted the appellants to complete the remaining portion of the work in the ORR subject to the result of the appeal.
Signature Not VerifiedDigitally signed by NEELAM GULATI Date: 2018.10.03 16:19:36 IST Reason:
2. At present ring road has been completed and is in use and amount of approximately Rupees Six thousand 2 crores has been invested for the construction of the ORR. Other development by its side has also been made.
3. The High Court found that with respect to certain areas i.e. survey nos. 25,26,28,29 & 122, the Notification under Section 4 of the Land Acquisition Act, 1894 (in short, ‘the 1894 Act’) was not issued. The High Court has also found that the change of alignment was made in order to benefit certain persons on political consideration or otherwise. In the instant case CBI investigation was also ordered and CBI found that the Hyderabad Urban Development Authority (HUDA) which has been renamed as Hyderabad Metropolitan Development Authority (in short, ‘the HMDA’) had proceeded with the acquisition of the land without preparing proper plan for proper alignment and it appears that alignment has been changed in order to benefit certain individuals.
4. It was also the case set up by the appellants that Nagulkunta Lake, which was in the area of 11 acres, had been acquired to the extent of 7 acres and area of four acres was left. Thus, the construction made by the destruction of the Nagulkunta Lake is absolutely improper and the respondent be directed to restore the 3 Lake.
5. HMDA started acquisition proceedings by issuance of Notification under Section 4 of the 1894 Act in the year 2005. Total five notifications were issued in the year 2005. An inquiry under Section 5A of the 1894 Act was conducted; thereafter Awards were passed in the years 2008 and 2009.
6. The project was initiated in the backdrop facts of the case that Government of Andhra Pradesh had initiated the preparation of the original plan for ORR in 2001 by engaging M/s. MECON for feasibility study and the report was submitted in July 2003. In July 2004, Government of Andhra Pradesh re-examined the project and considered the recommendations of a group of senior officials in Government and HMDA and the concept was devised to be taken up as greenfield project through open areas avoiding major settlements and habitations. The revised plan was prepared for ORR. There was a proposal of 159 km of the road around the twin city of Sikandrabad and Hyderabad. The Topographical survey was undertaken. The ORR was designed to be an eight-lane fully access controlled expressway with two-lane service road on both sides featuring world-class designing like 4 cover leaf junctions and multiple level flyovers with connectivity to various State and National Highways, which was conducted as an integral part of the Hyderabad growth corridor. The ORR offers to the city dwellers various benefits including relieving of traffic congestion providing orbital linkage to radial arterial roads creating option for development of satellite townships, providing quick access to strategic parts of city including new international airport, hi-tech city, games village, hardware park, knowledge park, Singapore township, financial district etc.
7. The alignment was taken through greenfield area, avoiding major habitations structures etc. Thus, as the initial alignment did not provide for intersections including connectivity to State and National Highway. The requirement entailed the acquisition of additional land of 80-100 acres at junction points on all important roads.
8. Various notifications issued were questioned in the High court and some of the petitions were filed after a delay of four years.
9. For the purpose of entire ORR, about 5000 acres of land had been acquired. It is also averred by the 5 appellants that the Government of Andhra Pradesh has, in fact, approved the special compensation package for the project affected families under which land and cash compensation was offered to supplement the compensation provided under the 1894 Act. Work was expected to be completed by December 2011. Alignment committee has suggested certain changes in all sectors i.e. Southern, Western, Eastern and Northern. Report of Alignment committee was approved by the State Government.
10. Change of alignment was upheld in another writ petition with respect to different land by judgment and order dated 01.10.2007 passed by the Division Bench of the High Court and this court has upheld the judgment in Jayabheri Properties Pvt. Ltd. & Ors. v. State of Andhra Pradesh & Ors.[2010(5) SCC 590].
11. The High Court by the impugned judgment has set aside acquisition. The High Court has recorded the following conclusions:
"In view of the analysis of the facts and the law with reference to the pleadings, documents, and submissions made, we may sum up our findings on various issues and points as under:
(i) The passing of the Awards by the Special Deputy Collector-
cum-Land Acquisition Officer during the pendency of these proceedings does not bar the writ petition;
(ii) The consent of petitioners 5,9 and 10 in respect of 360 square yards of land in pre-litigation case numbers 798,799 and 6 803 of 2009 before Lok Adalat, is no bar for entertaining the writ petitions at their instance;
(iii) HMDA initiated impugned action even before it could decide and approve the designs as to whether to go in for cloverleaf interchange or double trumpet interchange at Kandlakoi;
(iv) The necessity for issuing of successive impugned DNs being ORR No. 72, dated 16.04.2005; ORR No. 83, dated 21.04.2005; ORR No. 122 dated 08.07.2005 and ORR No. 207, dated 14.12.2005, one after the other, has not been explained by HMDA by discharging the burden cast on it, and therefore the acquisition of land admeasuring Acs. 3.15 guntas and Acs. 5.18 guntas comprised in survey Nos. 25 and 122 respectively covered by ORR No. 83, dated 21.04.2005 and the land admeasuring Acs. 2.31 guntas in survey No. 26, Acs. 2.23 guntas in survey No. 28 and Acs. 6.03 guntas in survey No. 29 respectively covered by ORR no. 122, dated 08.07.2005, is in violation of mandatory requirements of law as there is no DN under Section 4(1) of the Land Acquisition Act, 1894, in respect of these lands;
(v) The method and manner of making and publishing the DDs under Section 6(1) and passing of the Awards being Award Nos. 11 of 2008 dated 04.05.2008, 9 of 2008, dated 04.05.2008, 10 of 2008 dated 10.05.2008, 24 of 2008 dated 07.01.2009 and 25 of 2008 dated 07.01.2009 are vitiated by non-application of mind. The perusal of the files produced does not inspire confidence in the Court and there are strong suspicions of interpolating and extrapolating the record, probably to report fait accompli with an intention to deny the remedy to the petitioners;
(vi) The directions issued by Supreme Court in Jayabheri Properties Private Limited v. State of Andhra Pradesh have been violated. The impugned alignment would consume the entire Nagulkunta lake and therefore, cannot receive the imprimatur of this Court;
(vii) The acquisition of land admeasuring Acs. 55.00 belonging to the petitioners is irrational and arbitrary which cannot be 7 justified on the ground that it is restored to save Kandlakoi Reserve Forest for the reasons discussed in this Judgment;
(viii) The impugned acquisition is malafide and ultra vires. There are more than one reason for this Court to hold that petitioners’ land is sought to be acquired to help respondents 28,29,30 to 32,34 to 36 and 27 to have the advantage of increment of land value by reason of their lands coming within the near proximity to the Outer Ring Road/road interchange near Kandlakoi or at a shouting distance thereof. The frequent change of alignment is also malafide and cannot be sustained in law.
RELIEF In the result, for the above reasons the impugned land acquisition proceedings including the Notifications under Section 4(1) Declarations under Section 6 of the Land Acquisition Act and the awards are quashed. The petitioners would be entitled to their costs.”
12. During the pendency of the appeal in this Court, there was a proposal to settle the matter amicably between the parties. Certain exercise was also undertaken to pay compensation to the persons who filed the petitions relating to 56 acres of land at the higher rate as contemplated under the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (in short ‘the 2013 Act’) but that could not be materialized and several interventions have been filed, claiming similar treatment and higher compensation; no consensus could be reached with respect to the compensation to be paid to 8 all the landowners whose land had been acquired. Hence, we are required to adjudicate upon the matter.
13. It was urged by learned counsel appearing on behalf of the HMDA that ORR has been constructed and there is heavy traffic at present and it would not be appropriate to disturb the acquisition. The finding of the High Court is not appropriate and correct that survey Nos.25,26,28,29, & 122 were not in the notifications. Even if any illegality is found court can advance the date of compensation payable to all landowners. Learned counsel has relied upon the decision of this Court in Competent Authority vs. Barangore Jute Factory and Others 2005(13) SCC 477 and urged that in such circumstances in case of illegality, it would not be appropriate for this Court to quash the entire Notifications considering the importance of the ORR to the twin city of Hyderabad and Sikandrabad. A lot of development has taken place around the ORR and it would not be possible to change the alignment anymore as development has been permitted by this Court by the aforesaid interim order. It was also pointed out that the amount which was awarded by LAO was Rupees four lakhs per acre, however, certain incumbents who entered into the agreements to hand over their land with consent 9 were given compensation at the rate of Rupees twenty lakhs per acre. Compensation may be given to all at a uniform rate by advancing date.
14. On the other hand, learned counsel appearing on behalf of the respondents-land owners, pointed out that there was proposal to make the payment by entering into compromise with the respondents who filed writ petitions at the rate of Rupees two crores and fifty lakhs per acre for the land abutting National Highway and for other lands at the rate of Rupees One Crore and Sixty- Eight Lakhs per acre for 50% of land. That should be directed to be paid uniformly to all landholders under the Act of 2013.
15. Attention has also been drawn of this Court by the respondents to the finding regarding mala fide recorded by the High Court and change of alignment in order to oblige certain incumbents. Engineering college was also left out beside the land of a Minister as well as some influential bureaucrats.
16. It was also pointed out by learned counsel for respondents that the Nagulkunta Lake has been virtually destroyed by virtue of the construction of the ORR. Respondents could not have done it even under the guise 10 of saving 40 acres of forest area. Thus, it would be appropriate to direct the payment of compensation under the Act of 2013 as worked out in the aforesaid manner. The rate which prevailed in the year 2013 when the Act of 2013 came into force, was Rupees seventy-five lakhs per acre for the road adjacent to the National Highway and Rupees forty-two lakh per acre to the road abutting ORR. The appellant/State be directed to make amends for the destruction of the Lake and suitable directions be issued to restore the same.
17. After hearing learned counsel at length and giving an anxious consideration to the fact situation in which we are put, as on the one side development has already taken place of immense importance to the twin city of Hyderabad and Sikanderabad and lakhs of vehicles are using it every day at present, on ORR itself sum of Rs.6,000 crores had been invested. It would not be appropriate to disturb the land acquisition that has been made for existing ORR, at the same time, considering the fact that alignment has been changed time and again and there is ring of truth in the findings recorded by the High Court as well as the submission raised by the learned counsel appearing for the respondents that alignment had been changed with 11 respect to part of the ORR in order to oblige few influential incumbents. The submission is also supported by the report of the CBI investigation. Be that as it may, in the facts and circumstances of this case, it would be appropriate to grant compensation at the rate that was proposed to be made the basis for the calculation under the Act of 2013.
18. Though submission was raised and the finding had been recorded by the High Court that survey nos.25,26,28,29 & 122 were not included to the Notification issued under Section 4 of the 1894 Act, we have anxiously gone through the various Notifications and we find that in the Notifications, issued from time to time contained all these survey nos. 25,26,28,29 & 122, though survey nos. 25 came to be included little later but nonetheless, it has been included also as well as the area of survey no. 122. The area had gone certain changes and obviously, it could be changed as it would depend upon the ultimate suitability and alignment that has been changed and sanctioned by the Government also. Considering the importance of the project for the twin city, we are not making any interference in the acquisition, as not only the huge investment and public 12 money invested in the same of more than Rupees six thousand crores has been made, by now other development has also taken place around; that would also be adversely affected in case any interference is made in land acquisition/alignment.
19. Reliance has been placed by learned counsel appearing on behalf of the appellants on the decision of Competent Authority’s case (supra), in which this court has observed:
"14. Having held that the impugned notification regarding acquisition of land is invalid because it fails to meet the statutory requirements and also have found that taking possession of the land of the writ petitioners in the present case in pursuance of the said notification was not in accordance with law, the question arises as to what relief can be granted to the petitioners. The High Court rightly observed that the acquisition of land in the present case was for a project of great national importance, i.e. the construction of a national highway. The construction of a national highway on the acquired land has already been completed as informed to us during the course of the hearing. No useful purpose will be served by quashing the impugned notification at this stage. We cannot be unmindful of the legal position that the acquiring authority can always issue a fresh notification for acquisition of the land in the event of the impugned notification being quashed. The consequence of this will only be that keeping in view the rising trend in prices of land, the amount of compensation payable to the landowners may be more. Therefore, the ultimate question will be about the quantum of compensation payable to the landowners. Quashing of the notification at this stage will give rise to several difficulties and practical problems. Balancing the rights of the petitioners as against the problems involved in quashing the impugned notification, we are of the view that a better course will be to compensate the landowners, that is, writ petitioners appropriately for what they have been deprived of. Interests of justice persuade us to adopt this course of action.
15. Normally, compensation is determined as per the market price of land on the date of issuance of the notification regarding the acquisition of land. There are precedents by way of judgments of this Court wherein similar situations instead of quashing the impugned notification, this Court shifted the date of the notification so that the landowners are adequately compensated. Reference may be made to:13
(a) Ujjain Vikas Pradhikaran v. Rajkumar Johri and others [1992 (1)SCC 328]
(b) Gauri Shankar Gaur & Ors. v. State of UP & Ors. [1994 (1) SCC 92]
(c) Haji Saeed Khan & Ors. v. State of UP & Ors. [2001 (9) SCC 513] In that direction, the next step is what should be the crucial date in the facts of the present case for determining the quantum of compensation. We feel that the relevant date in the present case ought to be the date when possession of the land was taken by the respondents from the writ petitioners. This date admittedly is 19th February 2003. We, therefore, direct that compensation payable to the writ petitioners be determined as on 19th February 2003, the date on which they were deprived of possession of their lands. We do not quash the impugned notification in order not to disturb what has already taken place by way of use of the acquired land for construction of the national highway. We direct that the compensation for the acquired land be determined as on 19th February 2003 expeditiously and within ten weeks from today and the amount of compensation so determined, be paid to the writ petitioners after adjusting the amount already paid by way of compensation within eight weeks thereafter. The claim of interest on the amount of compensation so determined is to be decided in accordance with law by the appropriate authority. We express no opinion about other statutory rights, if any, available to the parties in this behalf and the parties will be free to exercise the same, if available. The compensation as determined by us under this order along with other benefits, which the respondents give to parties whose lands are acquired under the Act should be given to the Writ Petitioners along with what has been directed by us in this judgment.” This Court considering the importance of the project, in view of the illegality that was committed in the notifications, had advanced the date of compensation to take over the project in 2003, though the Notification under Section 4 of the Act had been issued in the said case on 11th June 1998.
20. In the instant case the facts indicate that there was proposal made by the HMDA to make the payment to the persons who filed petitions covering 50% of the land 14 covered under impugned notifications at the aforesaid rate of Rupees two crores and fifty lakhs per acre to the land adjacent to the National highway and Rupees one crore and sixty eight per acre to the land abutting ORR, but it could not ultimately work out. However, the value as in 2013 was taken of Rupees Seventy-Five Lakhs per acre for the land abutting National Highway as it was the basic value as per SRO. Similarly, for the land abutting ORR, it was Rupees forty-two lakhs per acre as per SRO as that was the basic value of the aforesaid land. Then on formula given under Act of 2013, aforesaid figure had been worked out. In our opinion, in the peculiar facts and circumstances of the case, it would not be appropriate to apply the formula of determining compensation as prevailed in the Act of 2013.
21. It would be appropriate to award compensation at the SRO rate of Rupees Seventy-Five lakhs per acre for the land abutting national highway and Rupees Forty-Two lakhs per acre for the land abutting ORR which was not opposed by HMDA also. That would be meeting the ends of justice.
22. The amount would carry statutory benefits i.e. solatium and interest also from date of this order and be paid within three months from today after adjusting 15 the amount that has already been disbursed to landowners after due verification.
23. It was fairly offered by learned counsel appearing on behalf of the HMDA that they would be paying the compensation even to the person whose land had been acquired with consent by entering into agreement in an aforesaid manner only relating to notifications in question as special case. In order to do complete justice between the parties, we direct the said compensation be paid to each and every land owner whose land has been acquired either under the Notification or by the agreement; as everybody should be treated similarly.
24. Coming to the question of the destruction of Nagulkunta Lake, since what has been done cannot be undone but still considering the concept of sustainable development as laid down by this Court in M.C. Mehta vs. Kamal Nath & Ors. [(1997) 1 SCC 388] for destruction of the Lake, HMDA has to make amends for protection of the environment. We accordingly direct HMDA to undertake a study and submit a report in this Court to provide a Lake of similar size by the side of the ORR or in close vicinity so that the environment is upgraded. The importance of the ponds, lakes & water bodies is immense 16 and same has to be preserved at all costs so that the environment is not degraded. Let a report be submitted by the HMDA in this Court so as to how to create a lake of the similar size with an adequate plantation in the area. The HMDA should also submit in the report that how many plants were cut and what they have done with respect to the plantation in the area in question around ORR/National Highway. Let a report on all these aspects be submitted within three months.
25. With respect to the certain observations that have been made against individuals, we order that they are not to be treated as observations against the said incumbents but they were made only for the purpose of reaching the decision and they shall not be used in any other proceedings. In case they are pending, have to be decided independently.
26. On behalf of respondents, it was pointed out that no proper access had been provided to certain incumbents to approach the road; they are free to file representations in this regard; in case such a representation is filed, the same shall be considered on its own merits by HMDA.
27. We make it clear that we have passed the order only in the peculiar facts and circumstances of this 17 case, and the same shall not be treated as a precedent in any other matter and it would not enable reopening of the case in any other matter of acquisition of land for or around ORR. Thus, the order shall govern only the land with respect to which the High Court has quashed the Notifications and not with respect to other lands which had been acquired for the purpose of the project by different notifications.
28. The appeals are accordingly disposed of. All pending applications are also disposed of. However, Registry is directed to list the matter after three months for the limited aspect for consideration of the report.
................J. (ARUN MISHRA) ................J. (VINEET SARAN) NEW DELHI;
SEPTEMBER 13, 2018
18
ITEM NO.105 COURT NO.8 SECTION XII-A
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
Civil Appeal No(s). 6451/2016
HYDERABAD URBAN DEVT.AUTH.(HUDA) & ANR. Appellant(s)
VERSUS
S.B.KIRLOSKAR & ORS. Respondent(s)
(FOR MODIFICATION OF COURT ORDER ON IA 4/2013 FOR ON IA 5/2013 FOR ON IA 6/2015 FOR [PERMISSION TO FILE ANNEXURES] ON IA 8/2016 FOR ON IA 9/2016 FOR ON IA 10/2016 FOR [PERMISSION TO FILE ANNEXURES] ON IA 11/2016 FOR ON IA 12/2016 and IA No.81378/2017-PERMISSION TO FILE ADDITIONAL DOCUMENTS and IA No.131821/2017-impleading party and IA No.132920/2017-CLARIFICATION/DIRECTION and IA No.135192/2017-impleading party and IA No.135199/2017-impleading party and IA No.21314/2018-impleading party AND I.A.NO.55494/2018(FOR CORRECTION OF LAND AREA)) WITH C.A. No. 8888/2015 (XII-A) ( and IA No.133370/2017-PERMISSION TO FILE ADDITIONAL DOCUMENTS) C.A. No. 6452/2016 (XII-A) Date : 13-09-2018 These appeals were called on for hearing today. CORAM :
HON'BLE MR. JUSTICE ARUN MISHRA HON'BLE MR. JUSTICE VINEET SARAN For Appellant(s) Mr. Jay Savla, AOR Ms. Renuka Sahu, Adv.
Mr. Rajaraman, Adv.
Mr. C.S. Vaidhayanathan, Sr. Adv.
Mr. P. Venkat Reddy, Adv.
Mr. Prashant Tyagi, Adv.
M/S. Venkat Palwai Law Associates, AOR Mr. Huzefa A. Ahmadi, Sr. Adv.
Mr. M. R. Shamshad, AOR Ms. Sarah Haque, Adv.
Mr. Aditya Samaddar, Adv.
Impleading Mr. R. Basant, Sr. adv.
Mr. S. Shankar, Adv.
Ms. Monalisa K., Adv.
Mr. Amit K. Nain, Adv.19
Mr. Shishir Pinaki, Adv.
Ms. Suchitra Hrangkhawl, Adv.
Mr. T.V. Bhaskar Reddy, Adv.
Mr. Virendra Mishra, Adv.
Mr. D. Ramakrishna Reddy, Adv.
Ms. Anu Gupta, Adv.
Ms. Gouri Kumar Das Mohanti, Adv.
For Respondent(s) Mr. A. Venayagam Balan, AOR Mr. G. N. Reddy, AOR Mr. Guntur Prabhakar, AOR M/S. Lawyer S Knit & Co, AOR Mr. Y. Raja Gopala Rao, AOR Mr. K. Maruthi Rao, Adv.
Mr. K. Radha, Adv.
Mr. Vinod Kumar, Adv.
Mrs. Anjani Aiyagari, AOR Mr. N. Rajaraman, AOR Ms. C. K. Sucharita, AOR Mr. D. Bharat Kumar, Adv.
Mr. Tadimalla Baskar Gowtham, Adv. Mr. Aman Shukla, Adv.
Mr. Abhijit Sengupta, AOR Mr. Anil Kumar Tandale, AOR Mrs. D. Bharathi Reddy, AOR Mr. Sanjay Hegde, Sr. Adv.
Mr. M.P. Shorawala, Adv.
UPON hearing the counsel the Court made the following O R D E R Impleadment allowed.
The appeals are disposed of in terms of the signed order. Pending application, if any, also stand disposed of.
(NEELAM GULATI) (JAGDISH CHANDER)
COURT MASTER (SH) BRANCH OFFICER
(SIGNED ORDER IS PLACED ON THE FILE)