THE HONOURABLE SRI JUSTICE B.SESHASAYANA REDDY Writ Petition Nos. 27987, 26222 and 27901 of_2005 Date: 10th February, 2006 W.P.No. 27987 of 2005 Between: Sri Biharilal Agarwal …Petitioner A N D 1. The Project Director & Special Collector (Land Acquisition), Outer Ring Road (ORR) Huda Complex, Tarnaka, Hyderabad …Respondent *** W.P.No. 26222 of 2005 Between: Nishhi Agarwal and another …Petitioners A N D The Government of Andhra Pradesh Rep. by its Principal Secretary, Municipal Administration & Urban Development Department, Secretariat Buildings, Hyderabad and Others …Respondents *** W.P.No.27901 of 2005 Between: 1. C.Ramakrishna S/o.C.Kondappa, R/o.D.no.5-4-450, Nampally Station Road, Hyderabad and others. …Petitioners and 1. The Project Director & Special Collector (Land Acquisition) Outer Ring Road (ORR), Huda Complex, Tarnaka, Hyderabad and another. …Respondents THE HONOURABLE SRI JUSTICE B.SESHASAYANA REDDY Writ Petition Nos. 27987, 26222 and 27901 of 2005 COMMON ORDER : In these three writ petitions challenge has been made to the notification under Section 4(1) of the Land Acquisition Act bearing No. C/ROR/951/2005, dated 24-11- 2005. The petitioners in W.P.No. 26222 of 2005 claim to be the owners and possessors of the lands bearing Survey Nos. 14,40 and 41 admeasuring Ac. 1-17 guntas and Ac. 0-23 guntas respectively situated at Tondupally village, Shamshabad mandal, Ranga Reddy District. 2. In W.P.No. 27987 of 2005 the petitioners claim to be the owners and possessors of lands bearing Survey Nos. 13,14,15,26,27 in an extent of Ac. 0.04, Ac. 1.17, Ac. 0.33, Ac. 1.00, Ac. 0.13, Ac. 1.33 guntas respectively situated at Toundupally village, Shamshabad Mandal, Ranga Reddy District. 3. In W.P.No.27901 of 2005 the petitioners claim to be the owners and possessors of lands bearing Survey Nos. 5 to 9, 10/1/A, 26,27,28P,11,12,14,23P, 24P, 62, 16P,25,28, 29P,30,32,35,36 to 39 situated at Kishanguda village, Shamshabad Mandal, Ranga Reddy District. 4. Notification under Section 4(1) of the Land Acquisition Act in proceeding Nos. C/ORR/951/2005, dated 24-11-2005 and C/ORR/1073/2005, dated 12-12-2005 came to be issued proposing to acquire the lands of the petitioners for the purpose of formation of Outer Ring Road and Junction (herein after referred to as “ORR” for brevity). By invoking urgency clause under Section 17(4) of the Land Acquisition Act, enquiry under Section 5-A came to be dispensed with and accordingly, draft declarations under Section 6 of the Act came to be published. The petitioners challenged the notification under Section 4(1) of the Land Acquisition Act as well as dispensing with enquiry under Section 5-A by invoking urgency clause under Section 17(4) of the Land Acquisition Act. Their principal objection is that the ORR junction can be formed nearby area i.e. at Pedda Shapur village where the Governments lands are available. Since the Government constituted a committee with Senior Officers to look into the objections in respect of number of changed effected by the authorities the said committee made certain suggestions and therefore, pending consideration of the suggestions at various levels, issuing notification proposing to acquire the lands of the petitioners for formation of ORR junction is unjustified. For better understanding of the grievance of the petitioners, Pars 4 and 5 of the writ affidavit in W.P.No. 26222 of 2005 needs to be noted and they are : “I submit that in fact the Outer Ring Road Junction can be formed nearby area viz. at Pedda Shapur village, where the Government lands are available. I also submit that the Government recently has constituted a Committee with the Senior Officers to look into the objections with regard to formation of Outer Ring Road in respect of number of changes effected by the authorities at their whims and fancies and the said Committee is looking into the matter and suggested some changes and the same are under discussion at various levels before the Government. While the matter stood thus, the Land Acquisition authorities, without even waiting for the report and decision of the Committee, has issued the impugned notification proposing to acquire the lands in question, depriving our rights and livelihood, which is nothing but arbitrary exercise of power. In fact the proposed junction is not required at the place and the same can be formed at nearby place where the Government lands are available. I came to know that some persons have filed writ petitions before this Hon’ble Court challenging the notifications issued by the Government exercising the eminent domain power in an arbitrary and discriminatory manner without any purpose and without notice. Since the committee is looking after the matter and until and unless it is approved by the Technical Experts, it cannot be said that these lands are required for the purpose of outer ring road and the proposed acquisition is arbitrary, illegal and contrary to the provisions of the Land Acquisition Act. It can also be seen that the impugned notification stipulates that the Special Deputy Collector, Land Acquisition Unit-1 has been appointed as the Collector for the purpose of functioning under Section 5A of the Act and simultaneously enquiry under Section 5A has been dispensed with. This itself clearly reveals that it is total non- application of mind by the respondent authorities. I submit that there is no real urgency and in fact no steps have been taken for formation of Outer Ring Road itself and the Committee is looking into the alignment and formation of outer ring road and at this stage, the proposed acquisition for formation of junction is mala fide, illegal and arbitrary. If the Committee proposes to change the alignment, the proposed acquisition will itself colourable and it is very difficult for the petitioners to get reconveyance of the land as the legal position stands today. As such it is submitted that the entire exercise of power under the Land acquisition Act is extraneous to the objectives of public purpose since the proposed formation of outer ring road and its alignment is yet to be finalized. The action of the authorities in picking and choosing to set up junction by acquiring the lands is on extraneous considerations, which is also challenged in similar writ petitions before this Hon’ble Court and the same are pending. I am advised to submit that invoking of urgency clause is not necessary in the instant case. Had the authorities conducted Section 5A enquiry, the necessity to acquire the land and the location of junction would have properly been explained to the authorities. The action of the respondents is only to deprive our fundamental rights guaranteed under Article 14 and 300A of the Constitution of India. I submit that since the 3rd respondent is abusing the powers vested in it by invoking urgency clause under Section 17 of the Land Acquisition Act by issuing number of notifications indiscriminately, we are left with no other alternative, except to seek indulgence of this Hon’ble Court under its extraordinary jurisdiction”. 5. 1st respondent filed counter-affidavit. One M.Vanaja Devi, Special Deputy Collector (Land Acquisition), ORR, HUDA, Tarnaka, Hyderabad has sworn to the counter affidavit. It is stated in the counter affidavit that the writ petitions are filed after issuance of award Enquiry Notice and much later to Section 4(1) Notifications and Section 6 declarations. The writ petitions are not maintainable after finalization of Section 4(1) Notifications and Section 6 declarations. Award had already been passed in respect of lands situated at Tondapally village, Shamshabad. After acquisition of lands at Tondapally/Shamshabad villages a decision to form junction at Kishanguda/Tondupally/Ootpally villages was taken basing on the technical experts committee. In view of the technical experts report, Section 5-A Enquiry has been dispensed with by invoking urgency clause under Section 17(4) of the Land Acquisition Act and Award enquiry was also conducted on 26-12-2005 and 27-12- 2005, with regard to the other land owners of the village. The change of alignment and confirmation of ORR or suitability of the land is not justifiable issue unless in a given case shows that the change of the land by the State Government and its authorities by factual mala fide or is done wrongly by the State authorities under the grab of exercise of eminent domain power. Para 15 of the counter affidavit needs to be noted and it is thus: “I further submit that the Writ Petitioner raised the ground of delegation of powers issued by the Government under G.O.Ms. No. 459 revenue dated 08/04/2005 which was notified in the A.P. Gazette No. 217 dt. 12/04/2005 is not tenable in view of the Section 3( c ) of central Act which empowers the State Govt. to appoint any officer especially appointed by the appropriate Govt. to perform the functions of the Colllector under the land acquisition Act. In reply to the averments made in para No.13 of the Affidavit that the delegation of powers to the Project Director, Outer Ring Road & Spl. Collector, Land Acquisition, Hyderabad Urban Development Authority, Hyderabad by the Govt. of Andhra Pradesh is not valid and the delegation powers can be made only to the District Collector under Section 3-A of the Land Acquisition 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 the Section 3-A delegation of powers to be given only to District Collector and not to any other officers is not available in view Section 3-C of Central Act. Section 3-C 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 Govt. to perform the functions of a Collector under this Act. The Central Act is made clear that the State Govt. can appoint any officer especially appointed to perform the functions of a Collector under the land acquisition Act. So delegation/or authorization/or appointment of Project Director, Outer Ring Road and Spl. Collector is well with in the powers of the State Govt. 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 Hon’ble Court in 1991 (1) ALT Page 478. 1991 (1) APLJ 330 where in the State Amendment to Section 17(5) has been made which held to be repugnant to subsequent Amendment made in the Central Act and held subsection 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 reported in 1996 LACC Page 538 (Suppl) 1996 (3) SCC 600 Sanjeev Nagar Medical & Health Employees Co- operatives Housing Society Vs. Mohammad Abdul Vaheb and others, the Apex Court while considering 40 days time limit incorporated by the State Amendment in Section 4(1) of L.A.Act is held to be void in view of the 254 of the constitution of L.A.Act. In view of the above legal position, the delegation or authorization granted by the State Govt. is valid under law. The provision of Section 3-A of L.A. Act by delegation the powers is only a mistake instead of quoting Section 3© of the Central Act. The State Government has incorporated Section 3-A is only for the purpose of dwelling houses to finalize 20 point formula program and for that purpose Act 22 of 1976 has been passed. It is further submitted that the Writ Petition is not maintainable since petitioners have not questioned Section 6 declaration and after finalization of the Notifications under Section 4(1) and 6 of the L.A. Act, the present Writ Petition is filed before conclusion of Award enquiry and approached the Hon’ble High Court which is not permissible under Article 226 of Constitution.” 6. Reply affidavit has been filed by the petitioners. It is stated in the reply affidavit that the petitioners through their Welfare Association requested the Government to clarify about the Central land of ORR Junction on N.H.No.7 at Kishanguda village as earlier it was mentioned that the center point would be at 18.9 Kms on NH7. This request was made when the Officers of 1st respondent visited the lands of petitioners for marking the margins, which were contrary to the project report and realignment plans inter alia specifying the center point at 18.9 kms on NH7. Petitioners made several representations vide letters dated 23-11-2005, 5-12-2005, 7-12-2005, 9-12-2005, 15-12-2005 and 27-12-2005 requesting to clarify the above position. 7. Heard Sri C.Kodanda Ram, learned counsel for the petitioners in W.P.No. 27901 of 2005 and W.P.No. 27987 of 2005; Sri E.Madan Mohan Rao, learned counsel appearing for the petitioners in W.P.Nos.26222 of 2005, and Sri Rajagopala Rao, learned counsel appearing for respondents in all three writ petitions. 8. Learned counsel appearing for the petitioners in W.P.No. 27901 of 2005 and 27987 of 2005 submits that the Government having appointed Special Deputy Collector, (Land Acquisition) Unit 1, Outer Ring Road, HUDA, Hyderabad to perform the functions of the Collector under Section 5-A of the Land Acquisition Act is not justified in dispensing with 5-A enquiry by invoking urgency clause under the provisions of Section 4 (1) and Section 17(4) of Land Acquisition Act. He further submits that an extent of Ac.13-23 guntas of land situated at Tondupally village proposed to be acquired for formation of ORR Junction is not required. A further submission has been made that Section 6 declaration is invalid since it came to be issued before causing local publication of Section 4(1) notification. He would also contend that Section 6 declaration came to be issued before local publication of Section 4(1) notification and thus the declaration is invalid and contrary to the provision of the Land Acquisition Act. In support of his submission, reliance has been placed on the decisions of Supreme Court in Hindustan Petroleum Corporation Ltd., Vs. Darius Shapur Chenai, and the decision of this Court in E.Rama Murthy Vs. Government of A.P. Revenue Department. 9. Learned counsel appearing for petitioners in W.P.No. 26222 of 2005 while adopting the arguments of Sri Kodanda Ram laid much emphasis on 4(1) notification wherein appointment of Special Deputy Collector to perform functions of Collector under Section 4-A of the Act has been indicated and thus contended that dispensing with Section 5(A) enquiry is illegal, arbitrary and unsustainable. 10. Per contra learned counsel appearing for the respondents submits that the petitioners in W.P.No.26222 of 2005 having participated in the Award Enquiry cannot be permitted to challenge the notification issued under Section 4(1) as well as draft declaration under Section 6 of the Land Acquisition Act. He further submits that petitioners cannot suggest what extent is required for formation of the ORR and junction and it is for the State Government to decide. To buttress his submissions, reliance has been placed on the decision of this Court in W.P.No.26360 of 2005 dated 24-1-2006 (Kilarapu Satyavati Vs. The District Collector, East Godavari), Peddi Anjaiah Vs. L.A.O. and R.D.O. Karimnagar and decision of Supreme Court in Mohan Singh Vs. International Airport Authority of India. 11. It is settled law that the process of acquisition has to start with a notification issued under Section 4(1) of the Act, which is mandatory, and even in cases of urgency, the issuance of notification under Section 4 of the Act is a condition precedent to the exercise of any further powers under the Act. Any notification, which is aimed at depriving a man of his property, issued under Section 4 of the Act has to be strictly construed and any serious lapse on the part of the acquiring authority would vitiate the proceedings and cannot be ignored by the courts. The object of issuing a notification under Section 4 of the Act is two fold. Firstly, it is a public announcement by the government and a public notice by the Collector to the effect that the land, as specified there in, is needed or is likely to be needed by the government for the “public purpose” mentioned therein; and secondly, it authorizes the departmental officers or officers of the local authority, as the case may be to do all such acts as are mentioned in Section 4(2) of the Act. The notification has to be published in the locality and particularly persons likely to be affected by the proposal have to be put on notice that such an activity is afoot. The notification is, thus, required to give with sufficient clarity not only the “public purpose” for which the acquisition proceedings are being commenced but also the “locality” where the land is situated with as full a description as possible of the land proposed to be acquired to enable the “interested” persons to know as to which land is being acquired and for what purpose and to take further steps under the Act by filing objections etc., since it is open to such persons to canvass the non-suitability of the land for the alleged “public purpose” also. If a notification under Section 4(1) of the Act is defective and does not comply with the requirements of the Act, it not only vitiates the notification, but also renders all subsequent proceedings connected with the acquisition, bad. 12. The main contentions urged in these writ petitions are, firstly, the extent proposed to be acquired for formation of outer ring road and junction is on high side and such an extent of land is not required; Secondly, Section 6 declaration is published much prior to the local publication of Section 4(1) notification and thus, Section 6 declaration is invalid; Thirdly, the Government having appointed an officer to conduct enquiry under Section 5-A of the Act, mechanically dispensed with such an enquiry by invoking urgency clause under Section 17(4) of the Act. 13. The respondents have stated in the counter affidavit that the formation of junction at Kishanguda/Tondupally/Ootpally villages was taken basing on the technical experts committee. When such is the assertion, it is not within the competency of this Court in exercise of powers under Article 226 of the Constitution of India to examine the sufficiency or otherwise of the extent of land proposed to be acquired for the formation of outer ring road and junction. It must be borne in mind that the satisfaction of the Government as to the existence of the public purpose cannot be lightly faulted and it must remain upper most in the mind of the Court vide the decision of Supreme Court in Pratibha Nema Vs. State of Madhya Pradesh. 14. The next contention of the petitioners is that Section 6 declaration came to be published even before the local publication and thus, Section 6 declaration is invalid. At this juncture, three provisions viz., Sections 4, 6 and 17 of the Act are required to be noted and they are: “SECTION 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 purpose6[or for a company], a notification to that effect shall be published in the Official Gazette6[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 locality6(the last of the dates of such publication and the giving of such public notice, being hereinafter referred to as the date of the publication of the notification)]. (2) Thereupon it shall be lawful for any officer, either generally or specially authorized by such Government in this behalf, and for his servants and workmen,- to enter upon and survey and take levels of any land in such locality; to dig or bore into the sub-soil; to do all other acts necessary to ascertain whether the land is adapted for such purpose; to set out the boundaries of the land proposed to be taken and the intended line of the work (if any) proposed to be made thereon; to mark such levels, boundaries and line by placing marks and cutting trenches; and, where otherwise the survey cannot be completed and the levels taken and the boundaries and line marked, to cut down and clear away any part of any standing crop, fence or jungle: Provided that no person shall enter into any building or upon any enclosed court or garden attached to a dwelling house (unless with the consent of the occupier thereof) without previously giving such occupier at least seven days' notice in writing of his intention to do so.” (Section 6 in its application to the State of Andhra Pradesh) “Section 6. Declaration that land is required for a public purpose:- (1) Where the appropriate Government or the District Collector is satisfied that any particular land is needed for the purpose of construction, extension or improvement of any dwelling house for the poor, a declaration shall be made to that effect under the signature of a Secretary to such Government or any other officer duly authorized to certify their orders or the District Collector as the case may be, and different declarations may be made, from time to time, in respect of different parcels of land covered by the same notification under Section 4, sub-section (1): (i) published after the commencement of the Land Acquisition ( Amendment and Validation) Ordinance, 1957 ( 1 of 1967), but before the commencement of the Land Acquisition (Amendment) Act, 1984, shall be made after the expiry of one year from the date of the publication of the notification. ii) Published after the commencement of the Land Acquisition (Amendment) Act,1984, 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. Explanation: 1: In computing any of the periods referred to in the first proviso, the period during which any action or proceeding to be taken in pursuance of the notification issued under Section 4 sub-section (1),is stayed by an order of a Court shall be excluded. Explanation2: Where the compensation to be awarded for such property is to be paid out of the funds of a corporation owned or controlled by the State, such compensation shall be deemed to be compensation paid out of public revenues; 2)Every declaration shall be published in the Official Gazette (or the District Gazette) and in two daily newspapers circulating in the locality in which the land is situate of which at least one shall be in the regional language and the Collector shall cause public notice of the substance of such declaration 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 declaration) and such declaration shall state the district or other territorial division in which the land is situate, the purpose for which it is needed, its approximate area, and where a plan shall have been made of the land, the place where such plan may be inspected. (3) The said declaration shall be conclusive evidence that the land is needed ( for a public purpose specified in sub-section (1) or for a company as the case may be; and after making such declaration, the (appropriate Government) or the District Collector) may acquire the land in a manner hereinafter appearing.” “Section 17. Special powers in cases of urgency:- (1) In cases of urgency, whenever the appropriate Government or the District Collector so directs, the Collector, though no such award has been made, may, on the expiration of fifteen days from the publication of the notice mentioned in Section 9, sub-section (1) take possession of any land needed for a public purposes. Such land shall thereupon vest absolutely in the Government, free, from all encumbrances. Explanation:- This sub-section shall