IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) MONDAY, THE EIGHTEENTH DAY OF AUGUST TWO THOUSAND AND EIGHT PRESENT THE HON'BLE MR JUSTICE B.SESHASAYANA REDDY WRIT PETITION NO : 9962 of 2006 Between: 1 Shaik Hasan, s/o late Mohd.;Yaseen, at T.S.No.13, Ward-217, Block-A, Panch Mahal, Near Charminar. 2 Noor Mohammed, s/o late Mohammed, at T.S.no.7, Ward -217 Block-A, Panch Mahal, Near Charminar. 3 A.A.Rasheed, s/o Abdul Lateef, at T.S.No.9, Ward-217, Block-A, Panch Mahal, near Charminar. 4 Rasheed Ahmed, s/o late Manzoor Hussain, at T.S.No.16, Ward-217, Block-A, Panch Mahal, Near Charminar. 5 Mohd.Abdul Muqeet, s/o Hafiz Abdul Wahab, at T.S.No.17, Ward -217, Block-A, Panch Mahal, Near Charminar. ..... PETITIONER(S) AND 1 The Govt.of Andhra Pradesh, rep., by its Secretary, Revenue, Secretariat, Hyderabad. 2 the Spl.Deputy Collector, (Land Acquisition) Municipal Corporation of Hyderabad, Lower Tank Bund, Hyderabad. 3 Municipal Corporation of Hyderabad, rep., by its Commissioner, Lower Tank Bund, Hyderabad. 4 The Collector, Hyderabad District, Hyderabad R4 is impleaded as per court order dt.13-6-2006 in WPMP 14291 of 2006 .....RESPONDENT(S) Petition under Article 226 of the constitution of India praying that in the circumstances stated in the Affidavit filed herein the High Court will be pleased to pass appropriate writ or direction particularly writ of mandamus declaring the proceedings No.C/191/2005 dated -12-2005 pertaining to Road widening from Charminar to Hari Bowli Junction (Reach-1), under Charminar-Panch Mahal (Charminar Road) on 25-07-2005 passed by the respondent No.2 herein as illegal, arbitrary and contrary to the provisions of the Land Acquisition Act and issue a consequential order to set aside the same and further direct the respondents to drop all further proceedings in respect of the acquisition of the land pass such order or orders as this Hon'ble Court deem fit and proper in the circumstances of the case. Counsel for the Petitioner: MR.J.PRABHAKAR Counsel for the Respondent No.: GP FOR LAND ACQUISITION The Court made the following : O r d e r : 1. This Writ Petition has been filed by the petitioners who are five in number assailing the proceedings No.C/191/2005 of the Special Deputy Collector (Land Acquisition)-2nd respondent whereby and where under the objections raised by the petitioners under section 5-A of Land Acquisition Act came to be rejected. 2. The petitioners are owners and possessors of premises bearing Nos.23-1-1083/1, 23-1-1111, 23-1-1109, 23-1-1081 and 23-1-1079 respectively at Panch Mahal, Charminar. They have been running their respective businesses for the past more than 40 years or so. The Municipal Corporation of Hyderabad issued notification under section 4(1) of the Land Acquisition Act proposing acquisition of the premises owned by the petitioners and others for road widening from Charminar to Hari Bowli junction (Reach-1), under Charminar – Panch mahal (Charminar Road). Notification in Form 3 was issued directing the owners of the premises shown in the schedule thereto to put on their objections as provided under section 5-A of the Land Acquisition Act. The petitioners filed their objections. The Land Acquisition Officer conducted enquiry as provided under section 5-A of the Land Acquisition Act and submitted his report. After concluding Sec.5-A enquiry, the draft declaration under section 6 of the Land Acquisition Act came to be published in Hyderabad District Gazettee on 6.2.2006 duly issuing notices as required under sections 9(3) and (1) of the Land Acquisition Act inviting claims of interest and fixing date of enquiry in such claims on 25.2.2006. It is the case of the petitioners that the premises owned by them are not required for road widening in view of the proposal to shift the bus stop to Farukhnagar, Shalibanda. Therefore, the bus stop has become redundant and the area occupied by the bus stop can be taken over so that road can be widened without much difficulty. For better understanding of the case of the petitioners, I deem it appropriate to refer paragraphs 6 and 7 of the writ affidavit, which read as under: “6. I submit that as per section 5-A of the Land Acquisition Act, the Collector is required to consider the objections, hear the same in person and then make the report in respect of different parcels of such land and submit the same together with all proceedings held by him for the decision of the government. The decision of the appropriate government on the objections shall be final. I submit that at the outset in the present case, the respondent No.2 herein did not consider any one of our objections. In fact, in so far as our bit is concerned, our specific case is that it is opposite to the Charminar terminal bus stand. Now in view of the environmental problems the buses are not allowed to ply in and around the Charminar, consequently the bus stop now is shifted to Farooq Nagar, Shalibanda. Therefore, the earlier bus stand has become redundant. We therefore proposed that this part can be taken over so that the road can be widened without much difficulty. However, the respondent NO.2 herein passed mechanically the order without giving any reasons. I submit that Section 5-A contemplates passing of reasoned recommendations. Moreover, the respondents herein cannot proceed with the enquiry unless the appropriate government passes a final order/ decision on the recommendations of the respondent No.2. In the instant case, the respondent No.2 herein is proposing that the enquiry without even waiting for the decision of the appropriate government. Under these circumstances, the petitioners are constrained to file this writ petition. 7. I submit that the proceedings of the respondent No.2 are vitiated for the above reasons and also for the reason that our objections have not been considered in a proper perspective and the same are rejected by him and is proceeding with the further enquiry. As a matter of fact, the respondent No.2 herein as such cannot reject our objections, he can only submit recommendations to the appropriate government. The appropriate government as contemplated is defined under section 3 (e e) of the Land Acquisition Act, wherein it means the State Government. Therefore, it is only the State government, which can take decision in this regard.” 3. The 2nd respondent filed counter affidavit. N.Raghunatha Rao, Special Deputy Collector, Land Acquisition, Municipal Corporation of Hyderabad has sworn to the counter affidavit. It is stated in the counter affidavit that enquiry has been conducted under section 5-A of the Land Acquisition Act after giving due opportunity to the petitioners and other objectors and an enquiry report came to be submitted to the Collector. There upon a draft declaration under section 6 of the Land Acquisition Act came to be published in Hyderabad District Gazettee duly issuing notice as required under sections 9(3) and (10) of the Land Acquisition Act. It is further stated in the counter that the Collector, Hyderabad District exercising powers of the Government as per the government order dated 17.7.1996 while approving the draft notification authorized the Special Deputy collector (LA), MCH to perform the function of the Collector under Section 5-A of the Land Acquisition Act. 4. A reply affidavit has been filed by the petitioners. In the reply affidavit a new ground has been set out disputing the width of the road. According to them, there is no need for expansion of width to the extent of 80’ and it would suffice the width of the road is restricted to 72.5 feet. Para 6 of the reply affidavit needs to be noted and it is thus: “6. I further state that we met the respondents recently and they stated that now the proposal is only to expand the road to the extent of 72 ½ feet and not 80 feet as originally planned and as such, our shops will be affected only to the extent. However, only certain assurances were given by the respondents, but till there is no specific proceedings or order to that effect. It is also relevant to state that insofar as other shops, which are demolished, are concerned, it is only to the extent of 75 feet. As such, there is no reason why the respondents insist for demolition to the extent of 80 feet insofar as our shops are concerned. There are several properties, which are still in existence and not yet demolished. As such, the various contentions advanced by the respondents are not correct.” 5. Heard learned counsel appearing for the petitioners and learned Standing Counsel of Greater Hyderabad Municipal Corporation appearing for R2 and R3. 6. Learned counsel appearing for the petitioners submits that the Land Acquisition Officer after conducting enquiry under section 5-A of the Land Acquisition Act has to send his report to the appropriate government and then the appropriate government has to consider the objections raised by the land holders objectively and pass appropriate orders. A further submission has been made that the report submitted by the Land Acquisition Officer under section 5-A has been considered by the District Collector and as he cannot be equated with the appropriate government as defined in section 3 (e e) of Land Acquisition Act, the procedure adopted subsequent to the submission of the report under Section 5-A, in the given facts and circumstances of the case, cannot be sustained. A further submission has been made that the objections raised by the petitioners have not been considered by the Land Acquisition Officer objectively and no reasons have been assigned for rejecting the objections raised by the petitioners. He would also contend that the petitioners have specifically averred in para 6 of the writ affidavit with regard to the availability of alternative site for road widening and that aspect has not been dealt with by the Land Acquisition Officer in enquiry under section 5-A and therefore the report submitted by the Land Acquisition Officer amounts to non-consideration of the material facts and it vitiates the notification issued under section 6 of the Land Acquisition Act. In support of his submissions, reliance has been placed on the decisions of the Supreme Court in GANGA BISHNU SWAIKA V. CALCUTTA PUNJRAPOLE SOCIETY, DELHI ADMINISTRATION V. GURDIP SINGH UBAN and HINDUSTAN PETROLEUM CORPORATION LIMITED V. DARIUS SHAPUR CHENNAI. Learned counsel laid much emphasis on the paragraphs 49 to 52 of 2nd cited decision, which read as hereunder: “ (49) A contention was raised by Sri Shanti Bhushan that the Lt. Governor had not applied his mind while issuing Section 6 declaration. Counsel relied upon certain observations made by the Division Bench in Balak Ram Gupta's case on 18-11-88 (1989) 37 Delhi LT 150 (DB). In that judgment, the High Court extracted the declaration made under Section 6 by the Lt. Governor. It reads as follows: " I have carefully gone through the Report of the Land Acquisition Collector under Section 5-A of the Land Acquisition Act in respect of village Chattarpur. I have also considered the objections received against the proposed acquisition. 2. The lands were notified under Section 4 of the Land Acquisition Act for a public purpose, namely 'planned Development of Delhi'. 3. I do not find substance in any of the objections. I, therefore, direct that notification under Section 6 of the Land Acquisition Act for a public purpose, namely, 'planned Development of Delhi' be issued in respect of 7142 bighas 18 biswas land of village Chattarpur as per draft furnished by the Land Acquisition Collector. The Division Bench of the Delhi High Court in its order dated 18-11-88 referred to the manner in which the Lt. Governor should have expressed his satisfaction under Section 6. The Bench observed: "Similar orders are passed in relation to all the eleven villages as if there was a prescribed pro forma. Section 6 (1) requires that the appropriate Government, in this case Administrator/lt. Governor of Delhi should consider the report under Section 5- A. After consideration he has to satisfy himself that particular land is needed for the public purpose, the consideration of the report including the objections of the objectors must be based on facts as disclosed in the order. " The Division Bench went on to say : "a mere statement, as is made in the present case, that the Lt. Governor has carefully gone through the Report and also considered the objections is not sufficient compliance of Section 6 of the Act. His satisfaction that particular land is required to be acquired is also to be arrived at on cogent and intelligent appreciation of the objections and the Section 5-A report. Mere statement that he is satisfied about the acquisition of particular land without stating any reasons will be mindless exercise of the powers under Section 6 of the Act. The order of the Lt. Governor must disclose as to what were the objections and why he has rejected them. " In addition, learned senior Counsel for the applicants argued that the use of the word 'particular' in Section 6 required that the Lt. Governor must, in his satisfaction under Section 6, have referred every piece of particular land. ( 50 ) IN our view, the above observations of the Division Bench do not lay down the law correctly and in fact run counter to earlier decisions of this Court. In Ganga Bishnu v. Cal. Pinjrapole Society (1968 (2) SCR 117 : AIR 1968 SC 615), the words used were that the "governor is satisfied that the land is need for a public purpose". It was argued that the said words did not ex facie show satisfaction of the Government which was a condition precedent. It was argued that the Amendment by Act 38/1923 omitted the words 'appears' and used the words 'satisfied' instead. Even so, this Court held that the law before the Amendment, and thereafter was the same. It was held that Section 6 specified the manner in which the declaration should be made and if it was so made, it was conclusive. It was held that it was not necessary that the notification should even refer to the 'satisfaction'. If the satisfaction was challenged, it would be sufficient if such satisfaction is proved by producing the record on the basis of which the Section 6 declaration was issued. Therefore, the argument that Section 6 declaration must contain reasons or refer to the objections for every particular land, is not correct. Again in Ratilal Shakarabhai v. State of Gujarat (1970) 2 SCC 264: (AIR 1970 SC 984), the plea that the Government had not applied its mind was rejected by this Court in the following circumstances. The Court observed (Para 9 of AIR ) : "Before issuing that notification (i. e. Section 6), there was an inquiry under Section 5a. The Government had issued that notification after examining the report submitted by the concerned officer, there is no material on record from which we can reasonably come to the conclusion that the Government had acted blindly in issuing that notification. " ( 51 ) NO reasons or other facts need be mentioned in the Section 6 declaration on its face. If the satisfaction is challenged in the Court, the Government can show that record upon which the Government acted and justify the satisfaction expressed in the Section 6 declaration. ( 52 ) IT is true that Section 6 used the wod 'particular land' but in our view while referring to its satisfaction in regard to the need to acquire the entire land, the Government need not refer to every piece of particular land. It is sufficient if the authority which conducts the Section 5a inquiry has considered the objections raised in relation to any particular land. Even where the said authority accepts the objections, that is not binding on the Government which can take a different view for good reasons. Where the Government agrees wit the report under Section 5a, the declaration under Section 6 need not advert to the reasons or facts concerning each piece of land. Hence, the wide observations made in Balak Ram Gupta's case (1989 (37) Delhi LT 130) cannot be accepted.” In the third cited decision the Supreme Court held that Sec.5-A of the Land Acquisition Act being the heart of the Act gives the citizen to avail of the only opportunity to make submissions both on the public purpose and the suitability of the acquisition in respect of his land, and, thus, being a valuable right which is akin to a fundamental right, the procedures laid down therein must be strictly complied with. It is further held that Sec.5-A of the Land Acquisition Act consists of two parts viz., hearing of objections by the Collector and decision of the Government on the objections on the basis of the Collector’s report and both the parts must be strictly complied with. 7 . Learned Standing Counsel appearing for 2nd respondent submits that under section 3-A of the Land Acquisition Act as applicable to the State of Andhra Pradesh, the State Government is empowered to delegate the function of the appropriate government to the Collector and therefore the Collector is competent to consider the report submitted by the Land Acquisition Officer under section 5-A of the Land Acquisition Act and pass appropriate orders. Section 3-A of Land Acquisition Act reads as under: “ Additional Provision for the State of Andhra Pradesh: 3-A. Delegation of functions: The State Government may, by notification in the Andhra Pradesh Gazette, direct that any power conferred or any duty imposed on them by this Act, shall in such circumstances and under such conditions, if any, as may be specified in the notification, be exercised or discharged by the District Collector.” In view of the provisions under section 3-A of the Land Acquisition Act as applicable to the State of Andhra Pradesh, the contention of the learned counsel appearing for the petitioners that the Collector is not competent to consider the report submitted by the Land Acquisition Officer under section 5-A and pass appropriate orders has no substance. 8 . Indisputably the notification under section 4(1) of the Land Acquisition Act is issued proposing acquisition of various premises for road widening from Charminar to Haribowli junction (Reach-1). About 29 premises were proposed for acquisition. The petitioners claim to be the owners of five premises. It is beyond the pale of controversy that road widening is a public purpose. The petitioners submitted objections as provided under section 5-A of Land Acquisition Act wherein they contended that their premises are not required to be acquired and instead the site of Charminar Bus terminal stand can as well be used for road widening. The Land Acquisition Officer has considered their objections in his report. What all the petitioners stated is that the bus terminal is likely to be shifted shortly. Even in para (2) of the objections filed by the petitioners before the Land Acquisition Officer it is stated that the bus terminal is being shifted shortly. It goes without saying that the bus terminus is still in operation and it is not certain with regard to shifting of the bus terminus. Therefore, the contention of the petitioners that the bus terminus is shifted to some other place and therefore that site can be made use of for road widening cannot be accepted. With regard to the width of the road, there will be uniformity and it cannot widen or shrunken when it comes to the premises owned by the petitioners. Therefore the contention of the petitioners that the width of the road is only 72.5 and not 80 feet cannot be accepted. 9. In view of the above discussion, I find that this writ petition is devoid of merit and the same is hereby dismissed. NO costs. 18th August, 2008. (B.Seshasayana Reddy,J) cc tomorrow. tnb ASSISTANT REGISTRAR // TRUE COPY // SECTION OFFICER To 1.2CCs to 2.2CD copies Form-NIC-OGS/WP{RS} THE HONOURABLE SRI JUSTICE B.SESHASAYANA REDDY WRIT PETITION NO.9962 OF 2006 18TH August, 2008.