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.
No comments:
Post a Comment
Note: Only a member of this blog may post a comment.