IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) MONDAY, THE TWENTY EIGHTH DAY OF JANUARY, TWO THOUSAND AND EIGHT. THE HON’BLE MR. JUSTICE C.V.NAGARJUNA REDDY WRIT PETITION No.18577 of 2007 Between: N.Ramakrishna Rao and another. … Petitioners AND The Project Director, Outer Ring Road and Special Collector (Land Acquisition), HUDA, Hyderabad and another. … Respondents Counsel for the petitioners: Sri Ch.Ravinder. Counsel for the respondents: Sri Y.Ravindra, Standing Counsel for HUDA for R.1 and R.2. THE HON’BLE MR.JUSTICE C.V.NAGARJUNA REDDY WRIT PETITION No.18577 of 2007 ORDER:- This Writ Petition is filed for a Writ of Mandamus to declare notification dated 25-3-2006 and declaration dated 1-7-2007 issued under Sections 4(1) and 6 of the Land Acquisition Act, 1894 (for short “”the Act”) as illegal. The petitioners also sought for a declaration that the action of the respondents is not bona fide and tainted with mala fides. Certain extents of the lands of the petitioners, situated in Survey Nos.832, 840 and 842 of Mankhal village, Maheshwaram Mandal, are proposed for acquisition for public purpose, viz., formation of outer ring road. Notification under Section 4(1) of the Act was published in the District Gazette of Hyderabad on 25-3- 2006. Declaration under Section 6 was published on 1-7-2007. Questioning these two proceedings, the present Writ Petition is filed. Heard Sri Ch.Ravinder, learned counsel for the petitioners and Sri Y.Ravindra, learned Standing Counsel for HUDA (respondents). At the hearing, learned counsel for the petitioners submitted that: (1) the Project Director, Outer Ring Road and Special Collector (LA), HUDA, Hyderabad (Respondent No.1 herein), has no power to issue notification under Section 4(1) of the Act; (2) that declaration published under Section 6 of the Act is beyond one year of publication of notification under Section 4(1) and, therefore, the whole of the Land Acquisition Proceedings lapse by virtue of proviso (ii) to Section 6 of the Act; and that (3) the alignments were changed on as many as three occasions with a mala fide intention of avoiding acquisition of lands of certain influential people. Sri Y.Ravinder, learned Standing Counsel for HUDA, appearing for the respondents, submitted that a Division Bench of this Court by judgment dated 1-10-2007 in Writ Petition No.22809 of 2006 and batch (M/s.Jayabheri Properties Pvt. Ltd., reptd., by its Director-Kishore Duggirala, Vs. State of A.P., reptd., by its Prl.Secretary, Municipal Administration and Urban Development Department, A.P. Secretariat, Hyderabad) rejected the first contention viz., that the Project Director is not authorized to issue notification under Section 4(1) of the Act. He also submitted that the second contention, viz., that declaration issued under Section 6 was published beyond one year of publication of notice under Section 4(1) of the Act is not correct. According to him, notification under Section 4(1) of the Act was published in the District Gazette on 25-3-2006; in the two newspapers on 28-3-2006 and in the locality on 3-4-2006. He further submitted that declaration under Section 6 was published in the District Gazette on 28-3-2007 and in the locality on 1-7-2007 and that as the last of the publications made under Section 4(1) in the locality was on 3-4- 2006, publication of declaration under Section 6 in the Gazette on 28-3-2007 is within the period of one year and, therefore, the learned counsel contends that the provisions of proviso (ii) to Section 6 of the Act are complied with. As regards the third contention, the learned Standing Counsel submitted that change of alignment was necessitated on account of various administrative reasons, based on the reports of the Alignment Committee and that the allegations of mala fides made by the petitioners are too vague and generic, which cannot be countenanced in law as the petitioners failed to discharge the burden placed on them to prove such allegations. He relied upon the above-mentioned judgment of the Division Bench in support of his contention that such allegations are liable to be rejected in limine. I have carefully considered the submissions of the learned counsel for the parties. With respect to the contention of the petitioners, viz., that the Project Director of HUDA has no jurisdiction to issue notification under Section 4(1) of the Act, the Division Bench, of which I am a party, in the above mentioned judgment, after a detailed consideration of the provisions of the Act and the relevant notifications gave the following finding: “In view of the above stated legal position, we do not find any merit in the petitioners’ plea that respondent No.4 was not entitled to act as a delegate of the State Government or that he could not exercise the power of the Collector for the purpose of Sections 4(1) and 6 of the 1894 Act”. Therefore, this contention advanced on behalf of the petitioners deserves to be and is accordingly rejected. With respect to the contention that publication of declaration under Section 6 of the Act is beyond one year of publication of notification under Section 4(1), it is necessary to reproduce Sections 4(1) and 6 of the Act to the extent they are relevant: “ Sec.4. Publication of preliminary notification and powers of officers thereupon:- (1) Whenever it appears to the appropriate Government that land in any locality is needed or is likely to be needed for any public purpose or for a company a notification to that effect shall be published in the Official Gazette and in two daily newspapers circulating in that locality of which at least one shall be in the regional language, and the Collector shall cause public notice of the substance of such notification to be given at convenient places in the said locality the last of the dates of such publication and the giving of such public notice, being hereinafter referred to as the date of publication of the notification. Sec.6. Declaration that land is required for a public purpose: (1) Subject to the provisions of Part VII of this Act, when the appropriate Government is satisfied after considering the report, if any, made under Section 5-A, sub-section (2), that any particular land is needed for a public purpose, or for a Company, a declaration shall be made to that effect under the signature of a Secretary to such Government or of some officer duly authorized to certify its orders, and different declarations may be made from time to time in respect of different parcels of any land covered by the same notification under section 4, sub- section (1); irrespective of whether one report or different reports has or have been made wherever required under Section 5A, sub-section (2): Provided that no declaration in respect of any particular land covered by a notification under Section, sub-section (1)- (i) published after the commencement of the Land Acquisition (Amendment and Validation) Ordinance, 1967 (1 of 1967) but before the commencement of the Land Acquisition (Amendment) Act, 1984 (68 of 1984) shall be made after the expiry of three years from the date of the publication of the notification; or (ii) published after the commencement of the Land Acquisition (Amendment) Act, 1894, shall be made after the expiry of one year from the date of the publication of the notification: Provided further that no such declaration shall be made unless the compensation to be awarded for such property is to be paid by a Company, or wholly or partly out of public revenues or some fund controlled or managed by a local authority”. From the above-reproduced provisions it is clear that declaration under Section 6 of the Act shall not be made after expiry of one year of the publication of notice. Under Section 4(1), the last of the dates of the publications and public notice constitutes the date of publication of the notification. The petitioners have not filed any rejoinder contradicting the claim of the respondents that publication in the locality was made on 3-4-2006. Therefore, the said date shall be taken as the date of notification as the same is the last of the publications made under Section 4(1) of the Act. Declaration under Section 6 having been published on 28-3-2007 in the Gazette, the same is well within the period of one year from the date of publication of the notification in the locality. Therefore, I do not find any merit in this submission of the learned counsel for the petitioners and it is accordingly rejected. Coming to the last submission made by the learned counsel for the petitioner, in the affidavit filed in support of the Writ Petition, the petitioners attributed mala fides for changing the alignment on three occasions. It is apt to extract these allegations hereunder: “I humbly submit that the entire exercise is illegal, arbitrary and malafide. The respondents have been changing the alignment of the ORR to suit the persons of their choice and protect the lands of persons of their choice, from time to time. As stated above when Notification was issued in the year 2004, Out Ring Road alignment was not passing through the lands held by us (owned by us). At the instance of the persons who are influential persons, the alignment was changed in the year 2005 seeking to acquire the part of the land held by us (owned by us) in Survey No.840 and a small extent of land in Survey No.842 of Mankhal village. I humbly submit that on the further pressure exerted by the influential people, the Notification dated 25-3-2006 was issued seeking to acquire the land held by us (owned by us) in Survey No.832, 840, 842. Perhaps not being satisfied with the same in Notification (in Form No.5-A) respondents have shown much more extents of land than what is notified under Section 4(1). I am filing the computerized copy of the alignment of the Outer Ring Road changed from time to time that would clearly show that the alignment was changed for extraneous reasons and ulterior purposes. The Exercise of the Power is not thus bonafide and it would clearly disclose that it was exercised malafide. A Carbon Factory is located in Survey Nos.823 and 834. In terms of the 1st Notification greater extents of the lands of the Carbon Factory in Survey Nos.823 and 834 was being lost. By amendment which I may call it as 2nd alignment again the land in Survey Nos.823 and 834 belonging to Carbon Factory was being lost in acquisition apart from other lands belonging to several others. In terms of alignment 3 the land of Carbon Factory was being lost in acquisition and it was going for away from the lands held by us (owned by us). It is therefore humbly submitted that the change of alignment are made to suit the influential people and in the result we are losing altogether total land owned by us (held by us). While the lands of others are simply dry lands, in the lands held by us (owned by us) there is a well-grown mango garden. Even according to respondents there are 419 mango tree, 31 tamarind trees, 29 neem trees, 120 teak trees and several other trees. It is humbly submitted that the respondents acted malafidy without even bothering to notice that we suffer irreparable loss and the loss that may be caused to others would be most minimum as there are no plantations (or grown gardens in other lands).” The petitioners have not come out with the details of the persons at whose instance the alignments were allegedly changed on three occasions. The petitioners also failed to indicate and implead the officials as eo nominee parties. Unless the officials are made parties in their personal capacity, they will not have an opportunity of denying the allegations of mala fides made against them. The Division Bench, in the above mentioned judgment, referred to more or less similar allegations and held as under: “The plea of mala fides and arbitrariness raised by the petitioners is liable to be negatived because, except making bald statement that the alignment approved in April, 2005 was changed with a view to favour some influential persons, who have links with the party in power, and with a view to harm those having connections with the opposition party in the State, the petitioners have not placed before the Court any tangible material or evidence to substantiate the same. It is settled law that the burden to prove the charge of malice animus or malice in fact is always on the person who makes such allegation and the Court cannot, on the basis of vague and bald assertions, make rowing enquiry in such matters which may fish out some material supporting the insinuatory assertions made by the petitioner. In E.P.Royappa V. State of Tamil Nadu – (1974) 4 SCC 3 -, the Supreme Court considered a somewhat similar question in the backdrop of allegations of mala fides leveled by the ex-Chief Secretary of Tamil Nadu against the Chief Minister of the State and observed: ‘The allegations of mala fides are often more easily made than proved, and the very seriousness of such allegations demands proof of a high order of credibility. Here the petitioner, who was himself once the Chief Secretary, has flung a series of charges of oblique conduct against the Chief Minister. That is in itself a rather extraordinary and unusual occurrence and if these charges are true, they are bound to shake the confidence of the people in the political custodians of power in the State, and therefore, the anxiety of the Court should be all the greater to insist on a high degree of proof. In this context it may be noted that top administrators were often required to do acts which affect others adversely but which are necessary in the execution of their duties. These acts may lend themselves to misconstruction and suspicion as to the bona fides of their author when the full facts and surrounding circumstances are not known. The Court would, therefore, be slow to draw dubious inferences from incomplete facts placed before it by a party, particularly when the imputations are grave and they are made against the holder of an office which has a high responsibility in the administration. Such is the judicial perspective in evaluating charges of unworthy conduct against ministers and other high authorities, not because of any special status which they are supposed to enjoy, nor because they are highly placed in social life or administrative set up – these considerations are wholly irrelevant in judicial approach – but because otherwise, functioning effectively would become difficult in a democracy’. Since the petitioners have failed to discharge the primary burden, which lie upon them to prove the charge of mala fide exercise of power, we decline to entertain this ground of challenge”. The reasoning contained in the above reproduced judgment to reject the allegations of mala fides applies in all fours to the present case as the allegations made by the petitioners are too bald and vague to be considered for adjudication and giving a conclusive finding thereon. For the aforementioned reasons, the Writ Petition fails and is accordingly dismissed. -------------------------------- ---- C.V.NAGARJUNA REDDY,J 28-01-2008 MNR