HON’BLE SRI JUSTICE P.S. NARAYANA WRIT PETITION No.21254 of 2009 Date: October 19, 2009 Between: M/s. GE Godavari Engineering Ltd., Muttangi (V) Patancheru (M) Medak District, rep. by its Chairman & Managing Director P. Balakrishna Karande. … Petitioner And 1. The Project Director & Special Collector, Outer Ring Road Project (L.A.) HMDA Complex, Tarnaka, Hyderabad and another. … Respondents * * * ORDER: This Court issued Rule Nisi on 06.10.2009. Counter-affidavit and reply affidavit also had been filed. 2. Sri K. Chidambaram, learned counsel representing writ petitioner had taken this Court through the contents of the affidavit filed in support of the writ petition and would maintain that in the facts and circumstances of the case the writ petition to be allowed. 3. The learned Additional Advocate General, on the contrary, had taken this Court through the contents of the counter-affidavit and would maintain that possession had been taken long back and if any further time to be granted, further proceeding of the work would be seriously prejudiced. The learned Additional Advocate General also placed reliance on certain decisions. 4. The present writ petition is filed by M/s. GE Godavari Engineering Ltd., praying for issuance of a writ of Mandamus declaring the action of the respondents in taking steps to remove the infrastructure and demolish the structures and compound wall constructed in an extent of Ac.6-27 guntas in survey Nos.121, 172 and 173 of Muttangi village, Patancheru Mandal, Medak District pending finalization of allotment of alternative land for relocation of the petitioner industry, as the land of the petitioner is required to be taken/acquired for formation of outer ring road and junction, as illegal, arbitrary, violative of Articles 19, 21 and 300-A of the Constitution of India and pass such other suitable orders. 5. It is stated that the petitioner is the absolute owner and possessor of the land, an extent of Ac.6-27 guntas, situate in survey Nos.121, 172 and 173 of Muttangi village, Patancheru Mandal, Medak District, having purchased the same under a registered sale deed for valuable consideration. The petitioner industry was established in the year 1980-81 and manufacturing power plant equipments. The petitioner had erected required buildings and installed plant and machinery with huge amount for manufacturing process of power plant equipments and also employed more than 300 persons and providing job works for more than 20 ancillary industries in and around Patancheru. The petitioner is paying amount nearly to a tune of Rs.11 crores to the Government by way of duties and taxes. 6. Further it is averred that while the matter stood thus, the respondents had proposed to acquire part of the land for formation of outer ring road and initiated acquisition proceedings in respect of part of the land out of Ac.6-27 guntas. Since the said acquisition affects the 29 years old industry, the petitioner had requested for allotment of equivalent land in industrial area and payment towards the value of existing factory buildings, administrative buildings as per industries norms. The Government of Andhra Pradesh, Industries and Commerce Department, vide letter No.15209/INF/A1/2008, dated 02.6.2009, taken a decision to allot equal extent of land in any of the industrial parts of APIIC duly adjusting the compensation payable by HMDA, as the land cost as a special case for industries to be located on the basis of the decision of the group of ministers on the issuance of enhanced compensation to the commercial/industrial structures in the outer ring road project. 7. It is also averred that the first respondent herein vide letter No.D/ORR/862/09, dated 16.6.2009, addressed to the Principal Secretary to the Government, Industries and Commerce Department, Government of Andhra Pradesh, requested him to consider the request of the petitioner for allotment of equal land and also for value of the structures duly assessing through Industries Department so as to arrange payment to the petitioner towards structural value. Respondent No.1 vide his letter No.D/ORR/862/09, dated 27.7.2009, addressed to the Chairman & Managing Director, APIIC Ltd., informed that an amount of Rs.1,04,26,350/- towards compensation payable to the petitioner in respect of land to an extent of Ac.6-27 guntas in survey Nos.121, 172 and 173 of Muttangi village will be paid in favour of APIIC Ltd., and requested to allot alternate land as proposed earlier so that the outer ring road project will acquire right of way to continue the road work. In response to the said letter, the APIIC Ltd., agreed to allot the land admeasuring Ac.6-27 guntas at I.P. Mandal (expansion) in favour of the petitioner on receipt of Rs.1,04,26,350/- duly adjusting the said compensation as the land cost as a special case irrespective of the rate of APIIC and requested to arrange payment of Rs.1,04,26,350/- at the earliest. 8. It is also further averred that the above referred proceedings reveal that the APIIC Ltd., had taken a decision to allot Ac.6-27 guntas at I.P. Mandal (expansion) in favour of the petitioner to relocate the industry in consideration to the land of the petitioner to an extent of Ac.6-27 guntas situate at survey Nos.121, 172 and 173 of Muttangi village which was sought to be taken for formation of outer ring road and its junction. No steps, whatsoever, had been taken so far to evaluate the value of the structures located and built up by the petitioner so as to arrange payment to the petitioner through the Industries Department as requested by the first respondent vide his letter dated 16.6.2009. 9. While the matters stood thus, the respondents had started insisting the petitioner to vacate the entire site to enable them to continue the ring road work and also to form junction for which the petitioner had requested them to wait till the decision of the allotment of alternative land as agreed by the APIIC as communicated to the petitioner and put the petitioner in possession of the said land and also wait till evaluate the value of the buildings located in the said site to enable the petitioner to claim the amount. The respondents, instead of obeying petitioner’s request, gave him time till 5th of October to vacate and also informed that if the petitioner failed to vacate the same, they will start demolishing the structures with the help of police from 6th of October. 10. It is also averred that if the respondents are allowed to proceed with the demolition of the structures and removal of the plant and machinery without finalizing the process of allotting alternative land and giving possession of it and assessing the value of the structures, the petitioner will be put to irreparable loss and hardship. It is also relevant to mention here that as the machinery is heavy, considerable time is required to relocate the existing industry at a new place. Hence, it is just and necessary to grant required time to shift the industry after handing over possession of the land allotted to the petitioner. At present there was Rs.10.00 crores worth of raw material and Rs.6.00 crores worth of finished products besides other valuable things. The action of the respondents in taking steps to demolish the structures of the petitioner industry is illegal, arbitrary and unconstitutional. In such circumstances, the writ petitioner approached this Court. 11. A counter-affidavit had been filed by the second respondent-the Sub- Collector (L.A.), Unit VI, Outer Ring Road Project. A preliminary objection had been raised by the Government that the writ petition is not maintainable and the same is liable to be dismissed at the stage of admission on the ground of delay and laches. It is also stated that the land acquisition notifications were issued on 21.4.2005 (ORR) and 11.5.2006 (Junction) and the award had been passed for both the notifications on 24.11.2007 (ORR) and 12.11.2007 & 27.5.2008 (Junction). 12 (2) notices were issued on 06.12.2007 and possession of the land was taken under a cover of panchanama for ORR on 01.12.2007 and ORR Junction on 16.6.2008 and in turn handed over to the contracting agency for execution of work. The land acquisition proceedings were concluded one year three months back and thereafter the land is absolutely vested with the government without any encumbrance. The consideration of allotment of alternate land to the petitioner is a concession given by the government to the petitioner and no legal right emanates from that concession and the petitioner cannot seek further time for shifting of the factory and the petitioner cannot insist that unless alternate land is given, the factory will be shifted. 12. It is further stated that as per 4 (1) notification published in Gazette ORR No.108, dated 21.4.2005, the land bearing Sy.Nos.121, 172 and 173, an extent admeasuring Ac.01-04 ½ guntas, belonging to M/s. GE Godavari Engineering Limited, an award was passed on 24.11.2007 and possession of the land was taken over on 01.12.2007 and in turn handed over to the contracting agency for laying of road work. 13. It is further stated that at the request of the petitioner, compensation of land was referred to the Government and APIIC agreed to give land to land on receipt of land compensation payable to the land owners. As per the package for the project affected families announced by the government vide G.O.Ms.No.14, dated 18.12.2006, the land compensation payable under consent to M/s. GE Godavari Engineering Pvt. Ltd., was worked out to Rs.1,04,26,350/-. At the request of the petitioner, it is agreed to pay the compensation to APIIC. Accordingly, the petitioner filed consent affidavit dated 09.9.2009 requesting to pay compensation @ Rs.15.62 lakhs per acre as per G.O.Ms.No.14, dated 18.12.2006, and also for payment of compensation for the tree, structures, bore wells as per the value estimated by the departments concerned and adjust the compensation amount of Rs.1,04,26,350/- to APIIC towards allotment of land. 14. It is also stated that this Court in its interim order in W.P.M.P.No.3585 of 2008 in W.P.No.2916 of 2008, dated 04.02.2008, directed the respondents not to disburse the compensation to the extent of the shares of the petitioners as claimed by them. It is also averred that the petitioner created a mortgage by constructive delivery of title deeds on 30.7.2007 at ICICI Bank Ltd., Begumpet, Hyderabad, in respect of its immovable property and secured working capital limits of Rs.205.00 million sanctioned by ICICI Bank to the petitioner. Keeping in view of the interim orders passed by this Court and the property under acquisition was mortgaged with ICICI Bank, the compensation amount of Rs.1,04,26,350/- to be paid to the petitioner could not be adjusted to APIIC. 15. It is also stated that except small patches of land where court orders were there the remaining area was handed over to the contracting agencies to whom the work was awarded in August 2007 and the work is going on by June, 2010 the entire road work will be completed. The details of land acquisition and expenditure particulars are furnished as hereunder. The details of lands acquired and possession taken over in Western Sector of ORR Unit – VI & VII S.No. Name of the village Name of the district Extent notified Ac – Gts. Award passed and possession taken extent Ac – Gts. Remarks 1 2 3 4 5 6 1 Narsingi Junction Ranga Reddy 30-00 30-00 Phase I, Junction 2 Narsingi 23-23 23-23 Phase-II 3 Poppalaguda 68-19 68-19 -do- 4 Vattinagulapally 186-28 186-28 -do- 5 Janwada 34-23 ¾ 34-23 ¾ -do- 6 Kollur Medak 141-20 ½ 141-20 ½ -do- 7 Edulanagulapally 16-10 16-10 -do- 8 Velimela 79-07 79-07 -do- Total 580-11 ¾ 580-11 ¾ UNIT –VI 1 Patighanapur Medak 93-11 93-11 -do- 2 Kardanoor 49-34 ½ 49-34 ½ -do- 3 Muttangi 75-19 75-19 -do- Total 218-24 ½ 218-24 ½ Grand total 798-36 ¼ 798-36 ¼ The present status of expenditure particulars of ORR, Phase-I and Phase-II-A are as follows Phase Pack- age No. From – To Length in Kms. Date of commencement of works contract value (Rs. in crores) Approximate value of work completed (Rs. in crores) Phase-I 1 Gachibowli to A.P. Police Academy 11-00 4.7.2006 219.74 78.25 2 A.P. Police Academy to Shamshabad 13-38 12.7.2006 295-09 169-00 Western sector AP-1 Narsingi to Kollur 12-00 12.12.2007 300-36 75-05 AP-2 Kollur to Patancheru 11-70 2012.2007 403-55 209-50 Phase- II-A, Eastern Sector AP-3 Pedda Amberpet to Bongulur 13-00 10.12.2007 388-25 159-72 AP-4 Bongulur to Tukkuguda 13-00 20.12.2007 359-31 229-76 AP-5 Tukkuguda to Shamshabad 12-63 27.11.2007 332-51 257-48 Total 86-71 Kms. Rs.2298- 81 crores Rs.1178- 76 crores The work in 4- lanes out of 8- lanes in Phase-I from Gachibowli to Shamshabad had been completed and 4-lane road had been opened to the public on 14.11.2008. Phase-II-A works commenced in December 2007 and the work is progressing at a brisk pace except for some small stretches of the disputed areas. The works undertaken are expected to be completed by June, 2010 and the total value of works taken up amounts to around Rs.2298.81 crores and the approximate expenditure already incurred had been around Rs.1178.76 crores. In addition to this, there had been expenditure incurred towards the cost of land acquisition, shifting of utilities etc. The cost of the structures being planned in Muttangi junction itself is about Rs.90.00 crores. Out of this, the value of structures being planned in the land occupied by the petitioner is about Rs.11.00 crores. It is also stated that if the road works are not completed in the continuous stretch, the expenditure so incurred may become infructuous. 16. It is also stated that in the western sector, from Patancheru (on NH-9) to Narsingi, the work is in progress in the entire stretch of 23 kilometres length with the exception of a stretch where court orders are there including an interchange at Muttangi village on NH-9 in which the land pertaining to the petitioner also acquired. Once the ORR stretch from Patancheru to Narsingi is completed, the NH-9 towards Mumbai and NH-7 towards Bangalore would get connected, thereby acting as a bypass to the Hyderabad city giving major relief to the city public from traffic congestions with the city and also in reducing the air pollution resulting from vehicular emissions and accidents. 17. The commencement date of the contract package AP-2 is 20th December, 2007. The scheduled completion date is June 19th 2010. The project cost under the contract is Rs.403.55 crores. The targeted financial progress of the work up to September 2009 is Rs.376.56 crores and the actual financial progress achieved is Rs.209.50 crores. As per clause 15 of the Concession Agreement of AP-2 Package of ORR Phase II-A, the project completion shall be achieved on a date not later than 30 months from the commencement date. As per clause 13.5.1 at least 50% of the Right of Way (other than junctions) shall be handed over to the Concessionaire on the commencement date. At least 80% of the Right of Way (other than junctions) shall be handed over to the concessionaire within 90 days from the commencement date. At least 90% of the Right of Way and additional lands required for junctions shall be handed over to the concessionaire within 180 days from the commencement date. Balance 10% of Right of Way shall be handed over to the concessionaire within 365 days (1 year) from the commencement date. Failure to adhere to the above terms and conditions, HUDA has to pay the damages to the concessionaire. 18. Clause 6.2 contains bonus clause to the contracting agency to claim for completion of work on time, provided entire stretch of land is given as per the schedule the clause 13.5.1 otherwise he is entitled to extension of time and claim of bonus without completing in time. It is also stated that the possession of the land had been taken over and in turn handed over to the contracting agency to take up the work. The compound wall of the petitioner was demolished on 04.10.2009 and started the work so as to complete the work within the stipulated time. This is the stand taken in the counter-affidavit of the second respondent. 19. In the reply affidavit filed it is stated that it is absolutely false to state that an extent of Ac.1-04 guntas in Sy.Nos.121, 172 and 173 belonging to the petitioner was taken over on 01.12.2007 and it is also false to state that an extent of Ac.3-38 guntas in Sy.Nos.121, 172 and 173 belonging to the petitioner was taken in possession on 01.12.2007 and 16.6.2008. The said land is in physical possession of the petitioner as on the date and the said land is consisting of building and other infrastructure of the petitioner’s industry and surrounded by compound wall. It is further averred that it is true that the Managing Director of the petitioner gave a representation as alleged and in the said representation he agreed to abide by the terms and conditions as per the agreement. 20. Further it is stated that the petitioner is ready to deliver possession of the said land provided by the alternative land as agreed is given to him and if reasonable time to shift the industry along with the finished and unfinished products also is given to him. The consent affidavit and consent agreement, photographs also had been placed before this Court along with the counter- affidavit referred to supra. 21. Strong reliance was placed on the under noted decisions. 1. Balwant Narayan Bhagde v. M.D. Bhagwat[1] 2. Larsen & Tubro Ltd. V. State of Gujarat[2] 3. Tamilnadu Housing Board v A. Viswam[3] 4. State of Tamil Nadu and another v. Mahalakshmi Ammal and others[4] 22. The writ petition filed by certain other writ petitioners i.e., W.P.No.2916 of 2008 had been dismissed and the present writ petitioner was shown as second respondent in the said writ petition. No doubt, certain submissions were made relating to actual delivery of possession and certain submissions were made by panchanama, the possession had been taken. Whether there was actual delivery or symbolic delivery, this question need not detain this Court any longer, since already proceedings are finalized and it is needless to say that the writ petitioner is entitled to either due compensation or the alternative land said to have been promised in this regard, as the case may be, liberty is given to the writ petitioner to agitate his rights, but suffice to state that the further proceedings cannot be stalled in the light of the peculiar facts and circumstances. However, this Court does hope that the respondents would give reasonable time so as to enable the writ petitioner to complete the shift at the earliest point of time. 23. Subject to the other above observations, the writ petition is hereby dismissed. No order as to costs. ____________________ (P.S. NARAYANA, J) Date: October 19, 2009. BSB [1] AIR 1975 SC 1767 [2] AIR 1998 SC 1608 [3] AIR 1996 SC 3377 [4] AIR 1996 SC 866