THE HON'BLE SRI JUSTICE P.S.NARAYANA Writ Petition Nos.7233/2006 and 6984/07 COMMON ORDER:- W.P.No.6984/2007 is filed by the writ petitioners praying for issuance of a Writ of Mandamus declaring the notification dated 19-7- 2006 under Section 6 of the Land Acquisition Act, 1894 (in short, referred to as ‘the Act’ for the purposes of convenience) and notification dt.8-7-2005 under Section 4 of the Act in proceedings No.C/ORR/374/2005 in respect of the lands in Sy.No.763, 768 situated at Upparpally village, Shameerpet Mandal, Rangareddy District to the extent of the petitioner consent are illegal, without jurisdiction and suspend the notification dt.19-7-2006 pending disposal of the Writ Petition and pass such other suitable orders. 2. W.V.M.P.No.242/2008 is filed in W.P.M.P.No.8900/2007 in W.P.No.6984/2007 by respondents 2 and 3 to vacate the interim order. 3. When the matter is coming up for hearing, at the request of the Counsel on record, the Writ Petition itself is being disposed of finally. 4. W.P.No.7233/2006 is filed praying for a Writ of Mandamus with the following prayers:- a) to declare the notifications issued by the respondents under Section 4(1) of the Act in proceedings No.C/71/2005 dt.13-4- 2005 and proceedings No.C/ORR/374/2005 dt.8-7-2005 issued in the A.P.Gazette and also the notices bearing No.LA/Unit- IV/192/2005 dt.31-3-2006 issued by the third respondent in respect of land bearing Sy.No.763, 764, 768, total admeasuring Ac.1-35 gts., Ac.1-35 gts., Ac.1-34 guntas and Ac.5-23 guntas respectively situated at Upparpally village, Shameerpet Mandal, Ranga Reddy District, belonging to the petitioners, as illegal, arbitrary, malafide, colourable exercise of power, without jurisdiction and consequently set aside the same; b) to direct the respondents not to dispossess the petitioners from the lands in question without following due process of law; c) to declare that the acquisition of petitioners’ land in question is illegal, arbitrary and without jurisdiction and consequently restrain the respondents from acquiring the same; and pass such other suitable orders. 5. Both these Writ Petitions are being disposed of by a common Order in view of the commonality of the questions involved in both these Writ Petitions and since the disposal of Writ Petition W.P.No.6984/2007 on merits would be sufficient even for disposal of Writ Petition W.P.No.7233/2006. 6. Sri Madan Mohan Rao, the learned Counsel representing the writ petitioners had taken this Court through the contents of the affidavit filed in support of the Writ Petition and also the contents of the counter affidavit and would maintain that inasmuch as though objections had been raised, the same had not been considered by conducting enquiry under Section 5-A of the Act, the subsequent proceedings are to be held to be invalid and opportunity to be given to the petitioners to represent their objections and the respondents are bound to give personal hearing since the enquiry under Section 5-A is not an empty formality. The learned Counsel in all fairness would submit that the other questions are concerned, since the same already had been decided by an appropriate Division Bench, the Counsel is not arguing the other questions in elaboration. 7. Substantially the averments made in the affidavit filed in support of the Writ Petition W.P.No.7233/2006 and the subsequent Writ Petition W.P.No.6984/2007 being the same, the averments made in the later Writ Petition W.P.No.6984/2007 and the stand taken in the counter affidavit are being dealt with in elaboration for the purposes of convenience. 8. However, Sri Ravindra, the learned standing Counsel representing the contesting respondents would maintain that the objections were not filed within time and hence the question of giving further opportunity under Section 5-A of the Act would not arise. The Counsel also would maintain that even otherwise it would be a futile exercise especially in the light of the decision of the Division Bench in W.P.No.22809/2006 & Batch and a copy of the Order is placed before this Court and the learned Counsel would maintain that in the light of the same, since further giving opportunity of considering the objections and personal hearing under Section 5-A of the Act would be a futile exercise, the Writ Petition to be dismissed. 9. Heard the Counsel. Perused the material avor. 10. The reliefs prayed for in both the Writ Petitions already had been specified supra. 11. The 3rd petitioner had sworn to the affidavit filed in support of the Writ Petition W.P.No.6984/2007. It is stated that The 3rd petitioner is the owner of the lands bearing Sy.No.763, 764, 768 total admeasuring Ac.1-35 guntas situated at Upparpally village, Shameerpet Mandal, Ranga Reddy District. Similarly, 2nd petitioner is the absolute owner and possessor of land bearing Sy.No.763, 764 and 768 total admeasuring Ac.1-35 guntas in Upparpally village, Shameerpet Mandal, Ranga Reddy District; 3rd petitioner is the absolute owner and possessor of land bearing Sy.No.763, 764 and 768 total admeasuring Ac.1-34 gts., situated in Upparpally village, Shameerpet Mandal, Ranga Reddy District; and the 4th petitioner is the absolute owner and possessor of land bearing Sy.No.763, 764 and 768 total admeasuring Ac.5-23 guntas in Upparpally village, Shameerpet Mandal, Ranga Reddy District. 12. Further it is averred that the respondent authorities have issued notification under Section 4(1) by proposing to acquire the lands vide notification under Section 4(1) dt.13-4-2005 for formation of Outer Ring Road. Some of the landlords who were affected by the notification dt.13-4-2005 got pressure on the respondent authorities and due to extraneous considerations, malafidely the respondents have issued notification dt.8-7-2005 proposing to acquire the lands in Sy.No.763, 764, 768, total admeasuring Ac.1-35 gts., Ac.1-35 gts., Ac.1-34 guntas and Ac.5-23 guntas respectively situated at Upparpally village, Shameerpet Mandal, Ranga Reddy by dropping the land proposed in the notification dt.13-4-2005. 13. It is also averred that the 3rd petitioner is uneducated and possess only these lands and except these lands, there are no other lands to him and he belongs to Backward community and he had been eking out his livelihood by doing agricultural operations on the said lands. Therefore, he filed Writ Petition W.P.No.7233/2006 before this Court challenging the notifications under Section 4 of the Act dt.13-4- 2005 and 8-7-2005 and this Court passed interim order directing the respondents not to interfere with the peaceful possession and enjoyment of the lands in Sy.No.763, 764, 768, total admeasuring Ac.1-35 gts., Ac.1-35 gts., Ac.1-34 guntas and Ac.5-23 guntas respectively situated at Upparpally village, Shameerpet Mandal, Ranga Reddy District. It is also stated that the respondents misinterpreting proceeded to conduct Section 5-A enquiry. In fact, they are not issued any further notice except notice dt.31-3-2006. This petitioner filed the objections on 19-4-2006 to the notice dt.31-3-2006 before filing the Writ Petition W.P.No.7233/2006 and the respondents have not issued any notice as per the Gazette notification under Section 4(1) dt.8-7-2005 under the Act. Relying on the explanation submitted by this petitioner to the notice dt.31-3-2006 before this Court granting interim order dt.20-4-2006, appears to have taken decisions to issue notification under Section 6 of the Act dt.19-7-2006 declaring to acquire the lands in Sy.No.763 – Ac.0.20 gts. and Sy.No.768 – Ac.2.00 guntas held by the petitioner. This, the petitioner came to know when they tried to fix the boundaries on 8-2-2007 and immediately got issued the contempt notice dt.10-2-2007. 14. It is also further stated that the action of the respondents is contrary to the provisions of the Act 3/2006. It is also stated that without converting the land use for non-agricultural purpose as per the Act 3/2006, the question of the acquiring the land for non-agricultural purpose under the provisions of the Act does not arise and the same is without jurisdiction. As such the question of acquiring the lands for non-agricultural purposefor Outer Ring Road Project without converting the same for non-agricultural purpose is totally to the contrary to the provisions of the Act and without jurisdiction. 15. It is also averred that no notice under Section 5-A of the Act in respect of the notification dt.8-7-2005 was issued as per Section 4(1) and the respondents relied on the objections submitted by the 3rd petitioner to the notice dt.31-3-2006 as per L.A. Notification dt.13-4- 2005 contrary to the directions of this Court dt.20-4-2006 in W.P.M.P.No.9301/2006 in W.P.No.7233/2006. Even assuming that his objections submitted to the notice dt.31-3-2006 as per the notification under Section 4 of the Act dt.13-4-2005 are considered, no communication is sent and none of the objections are considered. This petitioner had raised various objections including the legality of the issuance of the notification and change of alignment of Outer Ring Road in favour at the instance of big landlords and real estate people malafidely and without consideration of the objections, issue of notification under Section 6 dt.19-7-2006 is contrary to the Act and the non-consideration of the objections raised by the petitioner is arbitrary, malafide, contrary to the provisions of the Act. The notification under Section 6 of the Act is not notified within one year as contemplated. 16. It is also averred that the 2nd respondent is not Collector as per the provisions of the Act and is not competent authority to issue notification under Section 4(1) and 6 of the Act. Section 3(C) of the Act defines the Collector means the Collector of the District and includes the Deputy Commissioner of the District and the A.P.Amendment Act 22/76, 3(A) has been incorporated which allows the delegation of the powers only in favour of the Dy. Commissioner but not to any other authority. As such, the delegation of any functions of the Government other than Collector or Dy. Commissioner as per Section 3(A) of the Amended Act, 1976 is unauthorised. As such the entire proceedings issued by the 2nd respondent by issuing notifications under Section 4(1) and 6 of the Act is illegal and without jurisdiction as respondent No.2 is not a Collector within the meaning of provisions of Section 3 to 6 of the Act. It is also stated that claiming to be delegated Special Collector or Government, the respondent No.2 has no power to delegate the functions of Collector under Section 5-A to the 3rd respondent as such Section 5-A enquiry itself by the 3rd respondent is unauthorised, and as a matter of fact no enquiry is conducted and the same is without jurisdiction, contrary to the provisions of Section 3 and 5-A of the Act. It is also stated that no opportunity had been given as contemplated under Section 5-A of the Act and the mechanical enquiry under Section 5-A of the Act is farce denying valuable rights of the petitioners. 17. Further it is stated that the respondents have issued number of notifications including 13-4-2005, 8-7-2005, 13-12-2005 etc., proposing to acquire the land for formation of Outer Ring Road in the same place and issue of successive notifications in respect of the same lands for the same purpose is contrary to law as held by the Hon'ble Supreme Court in AIR 1966 S.C., 1593 and AIR 1988 S.C. 1615 and the action of the respondents in acquiring his lands in Sy.No.763, 764 and 768 situated at Upparpally village, Shameerpet Mandal, Rangareddy District is arbitrary and without following the due process of law. The action is violative of Article 14, 300-A of the Constitution of India and the entire proceedings are malafide issuance of notifications at the instance of real estate developers. 18. It is also averred that the entire initiation of acquisition of these lands is malafide and colourable exercise of power and no reasons are forthcoming why the respondents dropped the land proposed under notification dt.13-4-2005. The proposed alignment is zig-zag and the same is being changed number of points on extraneous considerations, contrary to the original plan and Expert Committee recommendations. The action is discrimination and abuse of provisions of the Act and even Expert Committee opinion are given by lands being deleted, road alignment is being changed for political and extraneous considerations inspite of Government statement in the newspapers that original alignment will not be changed. In such circumstances, the Writ Petitioners approached this Court. 19. In the counter affidavit filed by 3rd respondent it is stated that the Gazette notification bearing No.41 dt.13-4-2005 was issued for acquisition of lands admeasuring Ac.45-26 gts., in Shameerpet village for formation of 2nd Outer Ring Road. Subsequently it was noticed that certain religious structures and two water bodies i.e., 1) Udugula Bavi Kunta in Sy.No.795, 2) Jalal Kunta in Sy.No.1242 and Syed Jalal Saheb Dargah in Sy.No.1208 were found during the inspection and it was confirmed through the Revenue Records. Moreover, several representations were received from the villagers including Sarpanch of the Gram Panchayat, Shameerpet to make Re-alignment of the road so as to protect the water bodies which are being utilized for irrigation and also because six bore well are dug up in the tank bed for supply of drinking water to the villagers. These facts were informed to the higher authorities and after receiving their approval only, the revised Draft Notification was issued. Further, the Hon'ble Supreme Court in its Judgment reported in 2001 (6) SCC 496 – Hinchlal Thiwari v. Kamala Dvi and others in which it was categorically held that the water bodies should be protected and no portion of it can be allotted/assigned. In view of the Apex Court decision earlier alignment is changed. The issue is placed before the Review meeting held by the following Six Officers:- 1) Principal Secretary, IID 2) MD, INCAP 3) Project Director, ORR, HUDA. 4) Chief Engineer, ORR. 5) Director of Planning, HUDA. 6) Executive Engineer-V, HUDA. 20. As per the Discussion Note dated 21-5-2005 and 9-6-2005, the alignment was revised and the revised Draft Notification was issued on 8-7-2005 which was got published in the Gazette ORR.no.120 Consequently (28) representations were received from the public questioning the acquisition proposals. During enquiry they stated that there are lot of Government/Forest lands available which are abutting to their fields and requested to realign the road so as to pass through the Government/Forest lands. 21. It is also stated that after considering all the representations, the Government vide G.O.Ms.No.87 Infrastructures & Investments (IID-II) Department, dt.2-11-2005 appointed a Re-Alignment Committee consisting of the following Officers and directed to examine and sort out all the issues including Court cases fileld in connection with the alteration of alignment of Outer Ring Road and suggested a final alignment to be placed before the HUDA for approval by its Board and to forward the same to the Government in the Infrastructures & Investments (IID-II) Department for issue of orders approving the final alignment of the Outer Ring Road in 30 days time. 1) Secretary to Govt. MA & UD Department .. Chairman 2) Vice-Chairman, HUDA .. Member 3) V.C. & M.D., INCAP .. Member 4) Collector, R.R.Dist. .. Member 5) Collector, Medak District .. Member 6) Project Director & Special Collector, ORR .. Member- Convener 22. Further it is averred that all the representations in original and all the connected records are placed before the Committee. The Committee have examined the alignment proposals in depth and took up a decision on re-alignment while preparing revised re-alignments sketches. The HUDA Board also approved and passed Resolution in the meeting convened on 2-12-2005. Subsequently the Government vide G.O.Ms.No.8 Infrastructures & Investments (IID) dt.12-12-2005 accorded approval of the report of the Committee on Alignment and directed the Project Director & Special Collector to notify the final alignment as approved by the HUDA Board and Government. 23. It is also averred in para 5 that in pursuance to the direction of the Government, the Estate Officer, HUDA furnished requisition proposal for acquisition of specific lands basing upon which this respondent after going through the connected records carefully, prepared revised Draft Notification under Section 4(1) of the Act and submitted to the Project Director &Special Collector, Outer Ring Road project. The Draft Notification in turn was approved by the Project Director & Special Collector and the same was published viz., Gazette No.191, dt.13-12-2005. Further it is stated that the extents proposed for acquisition of record and junction in Shameerpet village in original and subsequent alignments are as follows: NOTIFICATION GAZETTE No. EXTENT Earlier Notification 41, 42, 43, (For Record & Junction) 44 & 82 Ac.208.01 Re-alignment Notification 120, 121 Ac.133.15 (For Record) Present Notification 191 Ac.72.24 (For Record & Junction) 24. Further specific stand had been taken that the present alignment is proposed through most of the Forest/Government lands available and feasible by omitting the patta lands as far as practicable. The alignment is passing from Bomraspet, Shameerpet villages to Puduru village through Thumukunta & Shameerpet village Forest areas. It is also averred enquiry under Section 5-A could not be continued in pursuance of the Draft Notification No.41 dt.13-4-2005 in accordance with the orders passed by this Court in W.P.M.P.No.9301/2006 in W.P.No.7233/2006 dt.20-4-2006. The Draft Notification No.120, dt.8-7-2005 is valid Notification issued as stated above. This notification was published in Andhra Prabha, Telugu, dt.16-7-2005. Substance to the notification was also got published in the locality Shameetpet & Upparpally villages on 26-7-2005 inviting objections if any from the persons interested over the lands within 30 days. The time limit as prescribed by the Act was expired by 25-8- 2005. The writ petitioners have not filed any objections in pursuance to the notice. There is difference in area of each Survey Number as well as location between Two Notifications. The writ petitioners are well aware on modifications in Alignment as per physical survey, newspaper publications & publication of substance in locality. There was no objection received from the writ petitioners so as to issue notice and to taken up enquiry usn51 of the Act. The contention of the writ petitioners that they came to know the fact of issue of notification under the Act dt.19-7-2006 only on 8-2-2007 at the time of fixation of boundaries is not correct. In fact the writ petitioners challenged the notification in W.P.No.7233/2006 filed by them on 11-4-2006. Besides this, they filed 3 applications on 15-10-2005 in response to the said Draft Notification dt.8-7-2005. But these objections were not taken up for enquiry under Section 5-A since those were not received within the statutory time fixed. The Draft Declaration was issued on 19-7-2006 vide A.P. Gazette No.101, dt.19-7-2006 and got published in The Eenadu, Telugu Daily and Times of India, English Daily on 27-7- 2006. This was also published in the locality on 3-8-2006. 25. It is also stated that the necessity of change of land use from agriculture to some other purpose is not required for acquisition of land for formation of road which is proposed to connect National Highways in outskirts of city to ease traffic congestion. This land is not being acquired for formation of any township. 26. It is also stated that since there are no objections received from the writ petitioners within the prescribed time, enquiry was not conducted under Section 5-A in respect of the writ petitioners’ lands. The allegation that the notification under Section 6 of the Act is not notified within one year as contemplated is not correct. The Draft Declaration under Section 6 was notified within time as stated above. It is further stated that consequent on issue 2nd D.N.No.120 dt.8-7- 2005, enquiry under Section 5-A of the Act was taken up in pursuance to the 1st notification dt.13-4-2005 is stopped and not proceeded further. With regard to DN No.120, dt.8-7-2005, the Notification was got published in the locality on 20-7-2005 calling objections if any from the interested parties before 18-8-2005. There are no objections received within the stipulated period to conduct enquiry under Section 5-A of the Act. The writ petitioners filed a representation on 15-10- 2005 without questioning the DN dt.8-7-2005 but requested to conduct Re-survey. After getting survey the facts were submitted to the Special Collector & Project Director, Outer Ring Road. The Special Collector has approved the Draft Declaration under Section 6 of the Act which was published in the Gazette No.101, dt.19-7-2006 and hence it is well within one year as contemplated under the Act. All the land acquisition cases are now under Award Enquiry. It is further stated that that the Government have issued G.O.Ms.No.14 dt.18-12-2006 framing guidelines for passing Consent Award by enhancing the land compensation payable to awardees besides allotment of developed plots according to their eligibility under R & R Package. The writ petitioners will be considered for payment of compensation at enhanced rate besides allotment of developed plots according to eligibility. 27. Further it is stated that the delegation of powers to the Project Director, Outer Ring Road & Special Collector, Land Acquisition, HUDA, Hyderabad by Government of Andhra Pradesh is not valid and the delegation powers can be made only to the District Collector under Section 3-A of the Act is not correct in view of Section 3-C of the Central Act. The Central Act will prevail over the State Amendment made in Section 3-A. The grounds raised that Section 3-A delegation of powers to be given only to District Collector and not to any other Officers is not available in view of Section 3-C of the Central Act. Section 3-C of the Central Act reads as follows: “The expression “Collector” means the Collector of a District, and includes a Deputy Commissioner and any officer specially appointed by the (appropriate Government) to perform the functions of a Collector under this Act.” 28. The Central Act is made clear that the State Government can appoint any Office especially appointed to perform the functions of a Collector under the Act. So delegation/or authorization/or appointment of Project Director, Outer Ring Road and Special Collector is well within the powers of the State Government. When there is an inconsistency of Central Act and the State Act, Article 254 of the Constitution of India has to be relied. This point has been dealt with by the Division Bench of this Court in 1991 (1) ALT 478, 1991 (1) APLJ 330 wherein State Amendment to Section 17(5) has been made which held to be repugnant to subsequent Amendment made in the Central Act and held sub-section 5 of Section 17 introduced by the State Amendment has become repugnant and void after the Central Amendment Act 68 of 1984 and cannot be enforced. In another decision report in 1996 LACC page 538 (Suppl), 1996 (3) SCC 600, the Apex Court while considering 40 days time limit incorporated by the State Amendment in Section 4(1) of the Act is held to be void in view of the Article 254 of the Constitution of India. It is also stated that that Section 30A has been enacted by State Government by Act 22 of 1976 authorizing District Collectors to approve Notification for a specific purpose i.e., 20 point economic programme likewise relates to the expansion of the scheme for proving house sites for the landless power under weaker Sections Housing Programme. The authorization to the District Collectors is limited to housing scheme only. Which is evident from the statement of objections and reasons while enacting the Act 22 of 1976. This Court in W.P.No.26360 held the validity of the delegation of powers under Section 3-A made to the Collector in order dt.24-1-2006. The above Judgment was confirmed by the Division Bench of this Court in W.A.No.112/2006 dt.27-2-2006. In this view of the matter by virtue of G.O.Ms.No.459 dt.8-4-2005 the Special Collector i.e., the 2nd respondent herein is confirmed with powers to discharge all the duties imposed on the State Government under Section 4, 5-A, 6 and sub-section 4 of Section 17 of the Act. A consolidated reading of Section 3(c) read with Section 3(a) and G.O.Ms.No.459 dt.8-4-2005 would make it abundantly clear the Special Collector is competent to discharge the duties of the State Government under concerned Sections referred therein. The Hon'ble Supreme Court has also considered the scope of the word Collector in AIR 1968 S.C., 432. The Hon'ble Supreme Court held the Collector to mean Collector of the District and includes Deputy Commissioner and Officer specially appointed by the Government to perform the functions of Collector under the Act. In view of the above legal position, the delegation or authorization granted by