* THE HON’BLE Ms. JUSTICE G. ROHINI + WRIT PETITION No.2153 of 2010 % 21/09/2010 # 1. Kalakoti Siva Reddy and 9 others. … Petitioners Vs. $ 1. The District Collector, Krishna at Machilipatnam and 42 others. … Respondents < Gist > Head Note: ! Counsel for the petitioner s : Sri M.V. Durga Prasad ^ Counsel for the respondents : Govt. Pleader for Land Acquisition Cases referred : [1] (2007) 13 SCC 53 2 AIR 2006 SC 898 3 AIR 2008 SC 1771(1) 4 (2007) 6 SCC 292 5 (1975) 4 SCC 285 6 1998 (9) Supreme 361 7 2008 (3) ALT 336 8 AIR 2010 SC 1664 9 AIR 2005 SC 3520 (1) 10 (2010) 5 SCC 590 11 (2010) 7 SCC 129 THE HON’BLE Ms. JUSTICE G. ROHINI WRIT PETITION No.2153 OF 2010 Dated: 21.09.2010 Between : 1. Kalakoti Siva Reddy and 9 others. … Petitioners And 1. The District Collector, Krishna at Machilipatnam and 42 others. … Respondents THE HON’BLE Ms. JUSTICE G. ROHINI WRIT PETITION No.2153 OF 2010 ORDER : The petitioners, 10 in number, claim title and possession in respect of different extents of lands situated in Sy.Nos.300/1, 300/3, 318/11, 322/1, 641/2B, 679/4A, 679/4B, 684/2, 684/4, 684/5B, 711/1B and 711/3B of Nunna Village, Vijayawada Rural Mandal, Krishna District. This writ petition is filed seeking a declaration that the notification dated 9.2.2009 issued under Section 4 (1) of the Land Acquisition Act, 1894 (for short, ‘the Act’) as well as the declaration dated 4.9.2009 made under Section 6 for acquisition of the lands of the petitioners for a public purpose namely formation of Bypass Road to Nunna village from Km 10.600 to Km 16.000 of Vijayawada – Nuzvid road as arbitrary, illegal and violative of the Zonal Development Plan and Master Plan prepared by Vijayawada-Guntur- Tenali-Mangalagiri Urban Development Authority (for short, ‘VGTM UDA’) under A.P. Urban Areas (Development) Act, 1975 (for short, ‘Urban Areas Development Act’). The facts, which are not in dispute, are as under: The Government of A.P. vide G.O.Ms.No.695, dated 9.11.1977 issued under Section 13 (1) of the Urban Areas Development Act notified VGTM Urban Area. Pursuant thereto, VGTM UDA prepared Master Plan for VGTM Urban Area and the same was approved by the Government vide G.O.Ms.No.144, M.A. & U.D. Department, dated 3.3.1988 as per Section 9 of the Urban Areas Development Act. Under the approved Master Plan, the area covered by VGTM UDA urban region has been divided into 23 Planning Zones. However Zonal Development Plans have been prepared for 15 zones on priority basis. The Nunna Zone is one among the said 15 zones and it consists of Nunna, Pathapadu, Firyadinainavaram, Ambapuram Revenue villages and Kothuru Reserved Forest Area. The Zonal Development Plan and Zoning Regulations of Nunna Zone were approved by the Government of A.P., vide G.O.Ms.No.676, M.A. & U.D. Department, dated 29.12.2006. As per the approved Zoning Regulations and Zonal Development Plan of Nunna zone, the land use in respect of Nunna zone has been made into seven categories namely residential use zone, commercial use zone, industrial use zone, public and semi-public use zone, agricultural use zone, conservation use zone and recreational use zone. The lands of the petitioners situated in Sy.Nos.300/1 and etc., fall within the agricultural use zone. The approved Master Plan of VGTM UDA provides for a 200 feet Outer Ring Road connecting N.H.5 with N.H.9 via Nunna zone passing through Sy.Nos.736, 708, 784, etc., of Nunna village. The Master Plan shows a Government donka poramboke road of 80 feet running from South to North and connecting Vijayawada – Nuzvid road. The said 80 feet road which is under use as public road from time immemorial and forms the Eastern boundary of Nunna Zone running from South to North, cuts across the 200 feet wide Outer Ring Road provided in the Master Plan. While so, pursuant to the representations made by the Sarpanch of Nunna village for formation of a Bypass road stating that the existing road passing through the village is being blocked due to heavy vehicular traffic because of Mango markets, the R & B Department submitted proposals for formation of a Bypass road. In pursuance thereof, the Government of A.P., vide proceedings dated 3.10.2000 granted administrative sanction for formation of the Bypass road through private agencies under Built Operate Transfer (BOT) Scheme. As per the proposals made by the R & B Department, the alignment was fixed from Km 10.600 to Km 16.000 of Vijayawada – Nuzvid road. However, the work could not be taken up as no bidders had come forward. Though it was again notified in the year 2003, only two tenders were received which were rejected as the terms offered by them were not in accordance with the BOT scheme. Thereafter a fresh administrative sanction was granted vide G.O.Rt.No.191, Transport, Roads & Buildings (Roads.VI), Department, dated 23.2.2007 with Rs.10.50 crores as estimated cost for formation of Bypass road. The Executive Engineer, R & B, Vijayawada submitted the requisition for an extent of Ac.36-57 cents in various survey numbers of Nunna Village for formation of Bypass road. However in view of the availability of an extent of Ac.1.82 cents out of the surplus land resumed under the Urban Land (Ceiling and Regulation) Act, 1976, the balance to an extent of Ac.34.83 cents, was proposed to be acquired from patta lands situated in Nunna village. The alignment proposed by the R & B Department for the Bypass road starts at Km 10.600 of Vijayawada – Nuzvid road and passes through the right side of the existing road through the agricultural lands and joins at Km 16.000 of the Vijayawada – Nuzvid road. Having taken note of the fact that the alignment proposed by the R & B Department is not tallying with the alignment of the Outer Ring Road proposed in the approved Master Plan of VGTM UDA and other roads proposed in the approved Zonal Development Plan of Nunna, the Vice-Chairman of VGTM UDA by letter dated 27.4.2007 addressed to the Principal Secretary to the Government, R & B Department, suggested that the alignment of the Bypass road may be finalized along the Outer Ring Road proposed by the VGTM UDA upto the Government Donka Poramboke and then take a turn towards North along the Government Donka Poramboke running from South to North and join the Vijayawada – Nuzvid road. A joint meeting was also convened by the District Collector, Krishna, on 19.05.2007 in which the officials of both the VGTM UDA and the R & B Department had participated and after detailed discussions it was suggested by the District Collector that the alignment proposed by VGTM UDA for outer ring road may be followed upto the Eastern boundary of Nunna zone and from that point the Government Donka Poramboke may be utilized till it meets Vijayawada – Nuzvid road so that the requirements of both VGTM UDA and R & B Department would be met. Pursuant to the VGTM UDA’s letter dated 27.4.2007, the Superintending Engineer, R & B, Vijayawada was asked to submit a report after conducting a detailed study on the feasibility of adopting the alignment proposed by the R & B Department (referred to as Alignment No.1) and the alignment proposed by VGTM UDA (referred to as Alignment No.2). Accordingly, the Superintending Engineer submitted his report and basing on the same, the Chief Engineer, R & B Department, by letter dated 9.7.2007 requested the Government to permit the R & B Department to take up the Bypass road along the Alignment No.1 stating that the said alignment has the following merits over the alignment No.2: 1 . Total length of the road, No. of CD works to be constructed are less with which the cost of Bypass is comparatively less. 2 . The curves are less in number, which are necessary in the aspect of Road Safety considerations. 3. Though the land to be acquired in alignment No.1 is more than that of alignment No.2, the alignment No.1 is technically and financially feasible. 4. There is a surplus weir, on alignment No.2 due to which a minor bridge is to be constructed. On the basis of the above said reports/recommendations, the Principal Secretary to Government of A.P., Transport, Roads & Buildings (Roads.VI) Department, by memo dated 6.8.2007 granted approval to take up the Bypass road as per the alignment No.1 (alignment proposed by the R & B Department). In pursuance thereof, the Land Acquisition Officer and Sub- Collector, Vijayawada submitted proposals vide proceedings dated 23.1.2009 for approval of the draft notification under Section 4 (1) of the Land Acquisition Act, 1894 and the same were approved by the District Collector, Krishna by proceedings dated 31.1.2009. The draft notification under Section 4 (1) was published in the A.P. State Extraordinary Gazette, dated 3.2.2009 and the same was also published in the daily news papers ‘Andhra Jyothi’ and ‘Pledge’ dated 9.2.2009. The substance was published in the locality on 9.2.2009. After conducting the enquiry under Section 5-A of the Land Acquisition Act, the declaration under Section 6 of the Land Acquisition Act was published in the Official Gazette dated 8.9.2009 and two daily news papers ‘Andhra Bhoomi’ and ‘Indian Express’ dated 15.9.2009 and the local publication was made on 16.9.2009. Thereafter the notices under Sections 9 (1) and 10 and Sections 9 (3) and 10 of the Land Acquisition Act were issued on 9.10.2009 informing the land owners / interested persons to attend the award enquiry on 30.10.2009. While further proceedings were pending, the present writ petition was filed on 3.2.2010 challenging the acquisition proceedings. It is not in dispute that if the Bypass road is formed as per the alignment proposed by VGTM UDA (Alignment No.2), the lands of the petitioners are not effected. However their lands are sought to be acquired under the impugned notification as per the alignment proposed by R & B Department (Alignment No.1) which has been approved by the Memo dated 6.8.2007. Assailing the said action, it is contended in the writ petition that the lands of the petitioners which are reserved for agricultural purpose in the Master Plan approved under the Urban Areas Development Act vide G.O.Ms.No.144, M.A. & U.D. Dept., dated 3.3.1998, cannot be used for the purpose of laying the Bypass road. Similarly the lands reserved in the Master Plan for laying road cannot be used for any other purpose. Therefore the approval of Alignment No.1 for the Bypass road which passes across the agricultural lands of the petitioners leaving the lands reserved in the Master Plan for Outer Ring Road is in violation of the mandatory provisions of the Urban Areas Development Act, particularly Section 13. The 1st respondent before making the declaration under Section 6 of the Land Acquisition Act failed to consider the mandatory and binding nature of the Master Plan on all the Departments including the respondents 4 to 6. While submitting that there cannot be any acquisition contrary to the Master Plan or Zonal Development Plan approved under the Urban Areas Development Act or for the purposes prohibited thereunder, it is further contended that such acquisition cannot be said to be for a public purpose within the meaning of the Land Acquisition Act, 1894 and therefore the impugned acquisition without there being a public purpose is without jurisdiction. It is alleged that the impugned acquisition proceedings are vitiated by mala fides and colourable exercise of power since the proceedings are initiated at the instance of some rich landlords whose lands were reserved for 200 feet Outer Ring Road under the Master Plan to avoid acquisition of their lands. It is also alleged that the Alignment No.1 involves multiple curves which are hazardous for free flow of traffic and there is no scientific basis or reason for approving the same except to favour the rich landlords. It is also contended that as the 1st respondent had failed to afford an opportunity of hearing to the petitioners as required under Section 5-A (2) of the Act read with the Rules made thereunder, the impugned notifications are vitiated by gross violation of the principles of natural justice apart from being contrary to the mandatory procedure prescribed under the Statutory Rules. It is pleaded that except recording the objections of the petitioners, no enquiry as contemplated under Section 5-A of the Act was conducted and that the petitioners were also not given an opportunity of hearing as required under sub-section (2) of Section 5-A of the Act read with the Rules made under Section 55 (1) of the Act. It is further contended that the acquisition of the lands reserved for agriculture for the purpose of formation of a road is also contrary to the provisions of Section 3 of A.P. Agricultural Lands (Conversion into Non-Agricultural Purposes) Act, 2006 and the policy of the Government of India to avoid the acquisition of the agricultural lands. On behalf of the 1st respondent -The District Collector, Krishna – a counter-affidavit has been initially filed by the Revenue Divisional Officer, Vijayawada stating that in response to the notices issued under Section 5-A of the Act, the petitioners 1 to 4, 6, 8 and 10 appeared for enquiry and submitted their objections. Their statements were recorded during the enquiry and they had also availed the opportunity of personal hearing. Out of total 110 land owners, 23 persons raised objections for formation of the Bypass road. The Sub- Collector, Vijayawada vide proceedings dated 26.5.2009 submitted the objections received from the land owners and the reports thereon to the Collector, Krishna, for consideration and passing of necessary orders. Having considered the same, the District Collector, Krishna, by proceedings dated 12.8.2009 overruled the objections raised by the land owners / interested persons and the same was forwarded to the Tahsildar, Vijayawada Rural Mandal for service on the objector and accordingly they were served. The proposals for draft declaration under Section 6 of the Act were submitted to the Collector, Krishna for approval vide proceedings dated 28.7.2009 and the same was approved by the District Collector on 4.9.2009. Thereafter the Section 6 declaration was published in the Gazette as well as the newspapers. The substance was also published in the locality. Thereafter, notices were served on all the interested persons to attend the award enquiry and the petitioner No.7 appeared for the award enquiry on 30.10.2009 and claimed compensation at the rate of Rs.50 lakhs per acre. The other petitioners did not choose to attend the award enquiry though notices were served on them. It is further stated that the bypass road is being formed in the interest of general public and the land in question has been acquired strictly in accordance with the procedure contemplated under the Land Acquisition Act. Out of the total land of Ac.34.83 cents sought to be acquired, the petitioners are concerned only with Ac.5.94 cents. An additional counter-affidavit, dated 27.4.2010, has been filed by the District Collector, Krishna, himself reiterating the contents in the counter-affidavit filed by the Revenue Divisional Officer and explaining further that the Executive Engineer, R & B Division, Vijayawada is the Requisitioning Department for the acquisition of the land in question and the alignment of Bypass road submitted by the R & B Department was approved by the Government of A.P. vide its Memo dated 6.8.2007. A sum of Rs.2,56,00,000/- was deposited with the Land Acquisition Officer and Sub-Collector, Vijayawada, by the R & B Department towards the cost of the acquisition. It is further stated that after careful examination and after considering all the alternative arrangements and after holding discussion with all the Departments the alignment was finalized by the Government and then the process of the land acquisition has been initiated. So far as the meeting held by the Collector & District Magistrate on 19.5.2007 and the suggestion made by him to follow the alignment proposed by the VGTM UDA is concerned, it is explained that the decision of the District Collector, who is only an implementing authority, is not final. As the Government vide Memo dated 6.8.2007 granted approval as per the alignment proposed by the R & B Department, in terms of the same the notification under Section 4 (1) of the Land Acquisition Act was issued. The allegation that the alignment was altered at the instance of rich landlords has been denied and it is stated that the alignment was finalized by the Government based on the public interest and utility values and the same has been implemented by the 1st respondent. The allegation of the petitioners that the objections raised by them were rejected without application of mind to the relevant factors has also been categorically denied. In the counter-affidavit filed on behalf of the 2nd respondent – VGTM UDA – it is stated that the alignment proposed by VGTM UDA for the Bypass road was in conformity with the Outer Ring Road proposed in Zonal Development Plan of Nunna Zone connecting NH- 9 and NH-5. It is further stated that any developmental activity should be according to the proposed Land Use Map of Zonal Development Plan which was prepared under the provisions of the Urban Areas Development Act and approved by the Government. While denying the plea that a Bypass road is not necessary for Nunna village except during the Mango season, it is stated that a Bypass road has been proposed in the Zonal Development Plan so that the Government can develop it instead of another alignment which involves additional land acquisition. The Executive Engineer, R & B Division, Vijayawada filed a counter-affidavit on behalf of the respondents 4, 5 and 6 stating that pursuant to the approval of the alignment vide Government Memo dated 6.8.2007 and the administrative sanction vide G.O.Rt.No.191, dated 23.2.2007, a sum of Rs.2,56,00,000/- was deposited towards the cost of acquisition. The allegation of the petitioners that some rich landlords whose lands were reserved for 200 feet Outer Ring Road along with the owners of the lands having lands far away from the existing 80 feet road had conspired to change the alignment has been denied and it is stated that the alignment for the Bypass road has been proposed after considering the representations made by the Sarpanch of Nunna village and after detailed study of various aspects and such a policy decision taken by the Government cannot be questioned. Some of the land owners whose lands are also covered by the impugned notifications got themselves impleaded to the writ petition as respondents 7 to 43. It is stated in their counter-affidavit that they gave consent letters to the Executive Engineer, R & B, Vijayawada on 18.1.2009 and also delivered possession of the land covered by the notification to the Executive Engineer since the formation of the Bypass road at Nunna village is in public interest. It is explained that the Marketing Department of Government of A.P. established a big Mango market on Vijayawada – Nuzvid road at Nunna village which serves the districts of Krishna, Khammam, West Godavari and East Godavari. During Mango season which commences in March till the end of June every day hundreds of lorries come to the said market with mangos for being sent to far off places in North India. Nunna village is situated 10 kms. away from Vijayawada city and 1 km. from the Municipal limits of Vijayawada. The Vijayawada – Nuzvid Road passes through Nunna village and during the Mango season heavy traffic jams are created causing lot of delay in transport of Mangos to the market. In the circumstances, the Gram Panchayat of Nunna village passed a Resolution in December, 1999 requesting the Government of A.P. to provide a Bypass Road to Nunna village from 10/6 km to 16 km on Vijayawada-Nuzvid road. After careful study of traffic density, the necessity of the Bypass road was strongly recommended by the Engineer-in-Chief on 27.03.2000 and the same was sanctioned by the Government under BOT on 3.10.2000. As the same could not be executed, fresh proposals were made in the year 2006 and on the basis of the report submitted by the Engineer-in-Chief, R & B, dated 15.12.2006, the sanction was accorded by the Government vide G.O.Rt.No.191, dated 23.2.2007. The plea of the petitioners that they were small farmers has been denied and it is alleged that the District Collector, Krishna, in the meeting held on 19.5.2007 suggested to follow the alignment proposed by VGTM UDA without considering the relative merits. Points for consideration:- (1) Whether the impugned acquisition proceedings are illegal on the ground of the alleged contravention of the provisions of Urban Areas Development Act? (2) Whether the impugned acquisition proceedings suffered from illegality on the ground that no reasonable opportunity was given to the petitioners in the enquiry under Section 5-A of the Act and that the objections raised were rejected without proper application of mind to the relevant factors? I have heard Sri M.V. Durga Prasad, the learned counsel for the petitioners; Sri D. Krishna Murthy, the learned Government Pleader for Land Acquisition; and Sri B.V. Subbaiah, the learned counsel appearing for the respondents 7 to 43, and perused the material available on record. POINT No.1:- The relevant provisions under the Urban Areas Development Act may be extracted hereunder: “S. 2 (b) 'Authority' means an Urban Development Authority constituted under sub-section (1) of Section 3 or a Special Area Development Authority constituted under sub-section (1) of Section 3-A for a development area under this Act; S. 2 (e) 'development' with its grammatical variations means the carrying out of all or any of the works contemplated in a master plan or zonal development plan referred to in this Act, and the carrying out of building, engineering, mining or other operations in, on, over or under land, or the making of any material change in any building or land and includes re- development: Provided that for the purposes of this Act, the following operations or uses of land shall not be deemed to involve development of the land that is to say-- (i ) the carrying out of any temporary works for the maintenance, improvement or other alteration of any building, being works which do not materially affect the external appearance of the building; (i i ) the carrying out by a local authority of any temporary works required for the maintenance or improvement of a road, or works carried out on land within the boundaries of the road; (iii) the carrying out by a local authority or statutory undertaking of any temporary works for the purpose of inspecting, repairing or renewing any sewers, mains, pipes, cables or other apparatus, including the breaking open of any street or other land for that purpose; (iv) the use of any building or other land within the cartilage purpose incidental to the enjoyment of the dwelling house as such; and (v) the use of any land for the purpose of agriculture, gardening or forestry (including afforestation) and the use for any purpose specified in this clause of any building occupied together with the land so used; S. 2 (f) 'development area' means any urban area or group of urban areas declared to be a development area under sub-section (1) of Section 13. S . 1 3 Declaration of development areas and development of land in those and other areas:- (1) As soon as may be after the commencement of this Act, where Government consider it necessary to do so for purposes of proper development of any urban area or group of urban areas in this State they may, by notification, declare such urban area or group of urban areas to be a development area for the purposes of this Act. ( 2 ) The Government may, by notification and in accordance with such rules as may be made in this behalf-- ( a ) exclude from a development area any area comprised therein; or (b) include in a development area any other area. ( 3 ) Save as otherwise provided in this Act, the Authority shall not undertake