* THE HON’BLE SRI JUSTICE V.V.S.RAO AND THE HON’BLE SRI JUSTICE B.N.RAO NALLA + WRIT PETITION No.16378 OF 2006 % Dated 09-09-2010 # S.B.Kirloskar and others … Petitioners VERSUS $ The Hyderabad Urban Development Authority (HUDA) renamed as Hyderabad Metropolitan Development Authority (HMDA), Hyderabad and others … Respondents. ! Counsel for Petitioners: Sri S.Ramachandra Rao, Senior Counsel For K.R.Prabhakar, advocate. ^Counsel for the Respondent No.1 : Sri Dhananjay Reddy Counsel for the Respondent No.2 : Sri Ravindra Yanamandra Counsel for the Respondent No.3 : Sri D.V.Seetharama Murthy, Advocate General Counsel for the Respondent No.4 : Sri Vijaysen Reddy Counsel for the Respondent No.5 : Sri B.P.Mohan, Standing counsel for APIIC Counsel for the Respondent No.6 : Sri Veera Swamy Counsel for the Respondent Nos.9 to 14 and 28 : Sri Raghuveer Reddy Counsel for the Respondent No.17 : Sri Rudra Prasad Counsel for the Respondent Nos.18, 20 and 23 : Sri Radhiv Reddy Counsel for the Respondent No.22: Sri E.Ajay Reddy Counsel for the Respondent No.24 : Sri Rajagopal Rao Counsel for the Respondent No.25 : Sri Hari Sreedhar Counsel for the Respondent No.26: Sri S.Rambabu Counsel for the Respondent Nos.30, 31 and 32:Sri P.Sri Raghuram Counsel for the Respondent Nos.33 to 36: Sri S.Niranjan Reddy Counsel for the Respondent No.38 : Sri P.Venugopal Counsel for the Respondent No.39 : Sri Bussa Rajendra <GIST: >HEAD NOTE: Cases Referred: 1. (1987) 4 SCC 328 : AIR 1987 SC 2257 2. AIR 1966 SC 1593 3. (1988) 3 SCC 294 : AIR 1988 SC 1615 4. (1992) 2 SCC 168 5. (1970) 1 SCC 125 : AIR 1971 SC 306 6. (1973) 2 SCC 337 : AIR 1973 SC 1150 7. (2001) 6 SCC 496 : AIR 2001 SC 3215 8. AIR 1993 Cal 215 9. (1995) 3 SCC 266 10. (1996) 8 SCC 462 : AIR 1996 SC 1977 11. (1997) 3 SCC 715 : 12. (1996) 5 SCC 647 : AIR 1996 SC 2715 13. (2004) 12 SCC 118 : AIR 2004 SC 4016 14. (1987) 2 SCC 295 : AIR 1987 SC 1109 15. (1986) 1 SCC 100 : AIR 1986 SC 391 16. (1991) 3 SCC 341 : AIR 1991 SC 1453 17. (1991) 2 SCC 539 18. (1991) 1 SCC 598 : AIR 1991 SC 420 19. (1987) 4 SCC 463 : AIR 1988 SC 1037 20. (2000) 10 SCC 664 : AIR 2000 SC 3751 21. (1999) 2 SCC 718 : AIR 1999 SC 812 22. (1997) 2 SCC 267 : AIR 1997 SC 1228 23. [1905] AC 426 24. (2003) 4 SCC 739 : AIR 2003 SC 1941 25. AIR 1974 SC 555 : (1974) 4 SCC 3 26. (2008) 12 SCC 292 27. (1993) 1 SCC 54 : AIR 1993 SC 763 28. [1986] 1 WLR 28 29. (1993) 2 SCC 279 : AIR 1993 SC 935 30. (2002) 3 SCC 496 : AIR 2002 SC 834 31. [1925] AC 338 32. AIR 1967 SC 1081 33. (1980) 2 SCC 471 : AIR 1980 SC 319 34. (1993) 3 SCC 634 35. (2008) 9 SCC 552 36. 545 US 469 : 162 l.Ed., 439 (2005) 37. (2004) 2 SCC 9 : AIR 2004 SC 692 38. (2002) 1 SCC 273 : AIR 2002 SC 195 39. (2007) 10 SCC 748 : AIR 2007 SC 1561 40. (2008) 2 SCC 660 : AIR 2008 SC 1209 41. (1995) 4 SCC 683 : AIR 1995 SC 1991 42. (1997) 2 SCC 627 43. (2000) 2 SCC 48 : AIR 2000 SC 671 44. (2010) 7 SCC 129 : JT 2010 (6) SC 57 THE HON’BLE SRI JUSTICE V.V.S.RAO AND THE HON’BLE SRI JUSTICE B.N.RAO NALLA WRIT PETITION No.16378 OF 2006 09.09.2010 Between: S.B.Kirloskar and others. ….Petitioners AND Hyderabad Urban Development Authority (HUDA) Renamed as Hyderabad Metropolitan Development Authority (HMDA) And others. …Respondents THE HON’BLE SRI JUSTICE V.V.S.RAO AND THE HON’BLE SRI JUSTICE B.N.RAO NALLA WRIT PETITION No.16378 OF 2006 ORDER (Per Hon’ble Sri Justice V.V.S.Rao): INTRODUCTION Hyderabad with its twin city of Secunderabad apart from being the Capital of Andhra Pradesh is also famous for its social and cultural history, pearls, pharma and software companies besides being the home of more than seven million population. It is a fast developing sprawling mega city with fast track growth initiatives and – as rumoured; a place for greedy and fortune hunters to make quick buck with speculation, political lobbying and subtle methods of cheating. The growth mine is not only gold mine for such people but a destiny for millions in search of a humble avocation to eke out decent livelihood. The city with less than a million population half a century ago is now spread over 10,000 square kilometers. In addition to irreversible environmental problems, it has also thrown up the problems of immense concern in relation to urban utilities, transport, mobility, movement and day-to-day life. Municipal Corporation of Hyderabad (MCH) and Hyderabad Metro Development Authority (HMDA) constituted under Hyderabad Metro Development Authority Act, 2007 and Hyderabad Metropolitan Water Supply and Sewerage Board (HMWS&SB) and similar statutory bodies continuously attempt to conceive, plan and implement many projects to make this mega city a citizen friendly habitation. OUTER RING ROAD (ORR) In 1984, a unique urban infrastructure initiative was mooted. It is to put in place an Outer Ring Road (ORR) to reduce urban congestion. The feasibility study for this ‘Green Field Project’ was done by M/s.Mecon. Initially, it was conceived to construct 109 kilometers four-lane ORR. After bureaucratic revision, the project was enlarged to cover 169 kilometers. The core object of the Project is to build Four-Lane Express Highway with large double trumpet road interchanges to facilitate least cumbersome user friendly collection and payment of toll from road users. Government’s sanction was granted in G.O.Ms.No.442, dated 19.10.2004. HMDA is in the saddle to implement ORR by generating its own funds. The project to be taken up in two phases with a financial outlay of about Rs.6,000/- crores, required 5,500 acres of private land. ALIGNMENT AND DESIGN OF ORR The Vice Chairman, HMDA approved the alignment as advised by the Secretaries Committee in four sectors, namely, Western, Northern, Eastern and Southern. Between 13.04.2005 and 21.04.2005, Project Director, ORR (hereafter, PD) issued number of Notifications under Section 4 of the Land Acquisition Act, 1894 (the Act, for brevity) (hereafter Notifications under Section 4 and Declarations under Section 6 are referred to as ‘DN’ and ‘DD’ respectively) for all the sectors proposing to acquire land. These DNs followed by issuing addenda, some were allowed to lapse. The alignment of ORR at many places was changed three times. The Government and HMDA could not stick to one finalized alignment which would have avoided scores of writ petitions in this Court challenging the method, manner and mode of acquiring the land to suit fast changing alignment. Some cases also reached apex Court involving questions like whether forest land, water bodies can be acquired for ORR and whether the alignment was changed with bad faith. Even while the litigation is pending in this Court as well as apex Court, Phase I (Western Sector – from Gachibowli to Shamshabad) of ORR, except few patches, was completed. Phase IIA (in Western Sector from Narsingi to Patancheru and in Eastern Sector from Peda Amberpet to Shamshabad) and Phase IIB (in Northern Sector from Patancheru to Shamirpet and from Patancheru to Peda Amberpet) are at different stages of completion. CHALLENGE IN THIS CASE Ten petitioners filed the instant writ petition praying this Court to quash DN dated 14.12.2005 issued under Section 4(1) of the Act. Some time thereafter, W.P.No.20316 of 2006 was filed invoking Public Interest Litigation (PIL) jurisdiction of this Court challenging acquisition of land for ORR on the ground that it is vitiated by arbitrariness and mala fide exercise of power. This case was tagged on to PIL case and from time to time interlocutory orders were passed. Initially, respondents 1 to 6 were arrayed as parties. But, petitioners filed application being W.P.M.P.No.30845 of 2005 to implead respondents 7 to 25, which was allowed on 30.11.2006. All these respondents are represented by the counsel. They have also filed counter affidavits. Petitioners, subsequently, filed W.P.M.P.No.34380 of 2009 to amend the prayer in the writ petition. As it stands, the petition is for issue of writ of mandamus declaring the action of respondents in initiating and continuing land acquisition proceedings for acquiring the lands of petitioners in an extent of Acs.65.35 guntas in survey Nos.23, 29, 61, 122 and 123 of Kandlakoi village of Maheswaram Mandal in Ranga Reddy District for the purpose of ORR by issuing DNs being O.R.R.No.71, dated 16.04.2005, ORR No.72, dated 16.04.2005 and ORR No.83, dated 21.04.2005, ORR No.122, dated 08.07.2005 as amended by addendum in ORR No.103, dated 12.07.2006 and ORR No.207, dated 14.12.2005 and the consequential proceedings, DDs and awards as illegal, unjust, arbitrary, discriminatory and violative of fundamental rights under Articles 14, 19 and 307 of Constitution of India apart from being contrary to the provisions of the Act. PETITIONERS’ CASE Senior counsel for petitioners requests us to treat the affidavit accompanying W.P.M.P.No.34380 of 2009 (application for amendment) as a comprehensive one. From this, the case of petitioners in a nutshell may be noticed. The lands owned by the petitioners are sought to be acquired by DN in ORR No.207, dated 14.12.2005, which was originally impugned in the writ petition. However, petitioners amended the prayer seeking to challenge four other DNs being ORR Nos.71, 72, 83 and 122 as amended by ORR No.103. Admittedly, the land sought to be acquired by these four DNs is situated at Kandlakoi village and the alignment of the ORR would pass through the lands of petitioners. They contend that if the road is taken up as per the original approved alignment, ORR will pass through Athivili village, which is at a distance of five kilometers from Kandlakoi. They allege that the alignment was changed thrice to exclude the land belonging to persons who are close to political leaders in power. (The details are adverted to later). The following statement is furnished by senior counsel to demonstrate as to how the lands of petitioners would be affected by the successive DNs impugned in the writ petition. TABLE - 1 Name of Petitioner Sy. No. First Alignment Second Alignment Third Alignment Notification in ORR 71, 16.4.2005 Notification in ORR 72, 16.4.2005 Notification in ORR 83, 21.4.2005 Notification in ORR 122, 08.07.2005 Notification in ORR 207, 14.12.2005 SB.Kirloskar 27 -- -- -- Ac.03.05 gts Ac.07.07 gts 28 Ac.02.03 gts -- -- Ac.00.35 gts Ac.04.20 gts 29 Ac.07.07 gts -- -- Ac.00.07 gts Ac.04.28 gts 61 -- -- -- Ac.03.07 gts Ac.04.12 gts T.Rajkumar 23 Ac.05.19 gts -- Ac.01.04 gts --- Ac.06.12 gts P.R.G.Raju 123 -- Ac.00.10 gts Ac.06.06 gts -- Ac.06.06 gts Latha Momaya 24 Ac.03.14 gts -- Ac.01.35 gts -- Ac.05.09 gts Dr.Wilfred D’Souja 25 Ac.01.30 gts -- Ac.00.22 gts -- Ac.05.23 gts 26 -- -- -- -- Ac.05.32 gts 28 Ac.02.03 gts -- -- Ac.00.35 gts Ac.06.19 gts 29 Ac.06.16 gts -- -- Ac.00.07 gts Ac.06.16 gts L.Rajeswari 123 -- Ac.00.10 gts Ac.03.39 gts -- Ac.07.21 gts Noble Park 122 -- -- AC.01.12 gts -- Ac.18.34 gts Various DNs issued under Section 4(1), one after the other either increasing or reducing the area of the land owned by petitioners according to changed alignment are challenged mainly on the following grounds: (i) Acquisition of land at Kandlakoi was taken up in haste without any transparency even without finalizing the trumpet design; (ii) the acquisition impairs water bodies, lakes and other wetlands which is contrary to law; (iii) part of petitioners’ land was acquired without therebeing a DN under Section 4(1) of the Act, and therefore, the whole process is vitiated; (iv) the successive DNs for acquiring the land in the same survey numbers render the acquisition process invalid and illegal; (v) the awards are not passed within the mandatory two years period under Section 11-A and therefore, the DNs are to be declared invalid; and (vi) the acquisition is vitiated by mala fide exercise of power on the part of the respondents 4, 6 and 17 and that the alignment was changed by the official respondents to help deletion of the lands belonging to respondents 17, 26, 28, 29, 30, 34, 37 and 38. DEFENCE OF HMDA & OTHER RESPONDENTS There are as many counters/rejoinders as petitioners’ affidavits. But, we will be referring to counter dated 16.12.2009 filed in W.P.M.P.No.34380 of 2009, which is comprehensive. Respondents deny the factual background and the allegations of mala fide exercise. Senior counsel for petitioners, learned Advocate General for respondents 1 and 2, senior counsel appearing for respondents 17, 18, 20, 23 and other counsel made elaborate submissions, on different days for a period of two months. Reference is also made to precedents. We shall refer to these and others at appropriate place. Before taking up these points one after the other, we may summarise the stages in land acquisition and the admitted position in relation to land at Kandlakoi village with which this writ petition is concerned. The land of petitioners cumulatively to an extent of Acs.28.12 guntas was proposed in ORR Nos.71 and 72, dated 16.04.2005, when first alignment had received approval. Within a week thereafter on 21.04.2005, another DN under Section 4(1) being ORR No.83 was issued proposing to acquire additional extent of Acs.14.38 guntas belonging to petitioners. The DDs under Section 6 of the Act were also issued being ORR Nos.66, 53 and 111 respectively. At that stage, the alignment was changed (second alignment). Another DN under Section 4(1) being ORR No.122, dated 08.07.2005 was issued. This time an extent of Acs.8.16 guntas belonging to petitioners 1 and 7 was covered. The corresponding DD being ORR No.122 dated 08.07.2005 was issued which was preceded by an addendum under Section 4(1) of the Act in ORR No.103, dated 12.07.2006. Again the alignment was changed in December 2005 (third alignment) necessitating issue of DN being ORR No.207, dated 14.12.2005 proposing to acquire an extent of Acs.88.39 guntas belonging to petitioners. This is not disputed. The following particulars in relation to various stages in impugned land acquisition are also not denied. TABLE - 2 Particulars of LA Proceedings . o. Notifications and Declarations under the Act Number and Date of Award Date of Possession taken U/s 4(1) U/s 6 Addendum to Notification, if any Amended Draft Declaration ORR No.71, dated 16.04.2005 ORR No.66, dated 20.04.2006 -- ORR 110 Dated 26.07.2006 11/2008 dated 04.05.2008 21.10.2009 ORR No.72, dated 16.04.2005 ORR No.53, dated 20.04.2006 -- ORR 122 dated 31.07.2006 09/2008 Dated 04.05.2008 21.10.2009 ORR No.83, dated 21.04.2005 ORR No.72, dated 01.05.2006 -- ORR 111 dated 26.07.2006 10/2008 Dated 10.05.2008 21.10.2009 ORR No.122, dated 08.07.2005 ORR No.112, dated 17.07.2006 ORR No.103, dated 12.07.2006 --- 24/2008 Dated 07.01.2009 21.10.2009 ORR No.207, dated 14.12.2005 ORR No.123, dated 31.07.2006 -- ORR 113 dated 29.07.2006 25/2008 Dated 07.01.2009 21.10.2009 There is no serious dispute that at least in respect of many pieces of lands, legal requirement of publishing DNs under Section 4(1) and DDs under Section 6 of the Act in the locality in the two newspapers have been duly complied with. There is also no dispute that respondent 17, namely, P.Venkatarami Reddy at the relevant time was Secretary of HMDA. Respondents 18, 20 and 23, which are firms in which brothers of respondent 17 are partners, own agricultural dry lands abutting or at a near distance from ORR in Kokapet village. They also own lands at Kollur and Kokapet villages. There is also no dispute that respondent 28 is son-in-law of brother of respondent 26 who is at relevant time Central Cabinet Minister and a Member of Parliament. Respondent 28 entered into development agreement on 09.07.2003 with M/s.V.Devender Reddy, Jayachandra Reddy and Akshay who are owners of lands in survey Nos.126 and 128 admeasuring Acs.26.00 situated at Kandlakoi village. There is also no dispute that initially an extent of Acs.11.00 out of this land was proposed but in subsequent alignments, it was excluded. There is also no dispute that the final approved alignment (third alignment) passes through a part of water body known as Nagulkunta, which is statedly irrigating about eight acres of land. The acquisition of land for part of the ORR and double trumpet road interchange/clover leaf interchange involves 500 meters in phase II of ORR in Northern Sector out of 169 kilometers. The dispute, therefore, is about Acs.70.00 of land belonging to petitioners, which is likely to be consumed by double trumpet interchange. POINTS ARGUED AND CONSIDERED In the light of the admitted factual position – to the extent as above; and the rival contentions, we will take up various points one after the other keeping the question of mala fide acquisition to the last. Acquisition without designs It is brought to our notice that access controlled express highway with trumpet interchanges facilitates unhampered flow of high-speed traffic even if HMDA is to collect the toll fee from the road users. Such interchanges permit hazard free travel on the Express Highway in any direction without causing inconvenience to other travellers. It is not a simple cross-road junction. It is something more which requires some times road under passes, over bridges etc. Such integrated toll plaza system would help in making toll operations effective, economical and secure. This reduces the cost of construction as only three vehicular under passes are required as against seven if clover leaf interchanges are taken up. There is no dispute that the final alignment was approved by the Government vide G.O.Ms.No.8, dated 12.12.2005. At that stage, the proposal or designs for road junction interchanges at nine places were not approved. The petitioners obtained the information from the office of HMDA under Right to Information Act, 2005. As per the UO note, dated 10.07.2009, of the Chief General Manager (Technical) to the PD, ORR, the final design of ORR junction at Kandlakoi was not available and such design for Medchel interchange was under preparation. A note was approved by Chairman & Managing Director, HMDA on 04.12.2008 wherein it was decided to address the Government for approval of proposal to construct either clover leaf interchanges or rotary interchanges at nine places. From this it is very clear that by the time first DN being ORR No.71 or for that matter last DN being ORR No.207 were issued, the designs for clover leaf/trumpet interchange were not ready. As there was no such move to acquire the land for interchange only a part and parcel of the land belonging to petitioners 1, 2, 4 and 7 alone was sought to be acquired for the purpose of ORR. It is rather curiously ununderstandable as to how the petitioners’ lands were included in the impugned DNs even before conceiving the design for the ORR phase II and decision was not taken whether to go for clover leaf interchange or double trumpet interchange. Whether law permits such successive Notifications? There is no dispute that within a period of eight months, there were five DNs under Section 4(1), five DDs under Section 6 and five amended DDs including an addendum to DN. This speaks of improper planning, hasty decision making and lack of vision in conceiving and implementing such a mammoth project intended to retain utility for another period of fifty years. Indeed as commented by the petitioners’ counsel that this has been the position in respect of many ORR acquisition proceedings, which were handled by eight Land Acquisition units. When complaint is made to the Court about successive DNs allegedly having been issued with ulterior motive, they cannot be straightaway thrown away as the decisions in the area of administrative discretion or prerogatives. PD, ORR admits in his counter affidavit that issue of such successive DNs was necessitated “in view of the slight modifications in the alignment to avoid the industrial structures, 220 KV electricity sub station and minority engineering college”. Petitioners contend that the final DN in ORR No.207 is contrary to the report of alignment committee constituted by the Government in G.O.Rt.No.87, dated 02.11.2005 and such successive DNs are in derogation of provisions of law besides being arbitrary. The alignment committee submitted its report on 24.11.2005. In submitting the report, the said committee considered the possible technical, environmental and financial impact on ORR project. To look into these aspects, the alignment committee consisting of Secretary to Government in Municipal Administration Department; Chairman, Managing Director (MD), INCAP; Vice Chairman (VC), HUDA; District Collectors of Ranga Reddy District and Medak; and PD, Member Convener constituted the Departmental Committee with MD, INCAP; VC, HMDA; and PD, ORR. This committee inspected areas and the alignment which was earlier suggested by a team of officials. Insofar as Northern Sector is concerned, committee noticed that two water bodies, one Darga, educational institutions and industries are coming in the way and accordingly suggested change in the alignment. Insofar as Medchel segment is concerned, the committee noticed that SANA Educational Society (respondent 30), Egwood Factory at Muneerabad (respondent 29) and a steep curve at Kandlakoi village made the change allegedly inevitable. The reasons are tabulated in the report, which need to be extracted. TABLE - 3 Sl. No. Name of the village Location Reasons for change Extent realigned in Acres. Gunts 1 Shamirpet Karimnagar High Way Presence of 2 water bodies, one Darga, St.Paul School, Futani Steel Industry 133.15 2 Bomraspet 1.08 3 Kandlakoi National High Way Egwood industry sold by SFC, steep curve & one engineering college 48.17 4 Muneerabad 36.36 Total extent re-aligned in 4 villages 219.36 The committee also noticed that ten writ petitions had been filed which were disposed of by this Court directing LAO to conduct enquiry under Section 5-A of the Act. Does the change of alignment make it any objection free? The alignment committee itself pointed out that suggested change in the alignment would not satisfactorily answer the objections. Insofar as Medchel Junction (at Kandlakoi) is concerned, the committee observed as under. The committee agreed with the reasons why the changes were made in the Original Alignment at Kandlakoi and Munirabad because of the Tank, Ameena College, Egwood Industry and the 200 KV sub station along the notified ROW. But the Committee felt that the New Alignment notified on May 2005 was also curvy and passing through the Medchal Reserve Forest. Going through the Alignment from Munirabad Village is made straight through the Agricultural Market Yard till the Nagpur NH 7, the ROW still would fall in the vacant area and also avoids the Medchal Reserve Forest. (emphasis supplied) The alignment committee mainly relied on secondary data and the report submitted by departmental committee which statedly inspected the areas where the changes in the alignment were suggested. Therefore, they cautioned that the alignment proposed is only the administrative one which can be the basis for further action. Here, we may excerpt the conclusion of the alignment committee In the end the Committee recommends to freeze the proposed Alignment that no uncertainty need be allowed. The alignment proposed has been identified with the help of Google Earth software, Satellite imageries and topographic maps, with field in sections at critical points. The data available with satellite imageries is subject to 20-25 meters variations. Accurate RoW (Right of Way) can be determined only after engineering survey is done with the help of GPS and Total Stations. Due to constraint of time and resources such study cannot be conducted as part of this exercise. Neither is it within the scope of this Committee. Therefore, the alignment proposed is only an administrative one, which can form the basis for further action. At the time of DPR preparation the consultants and engineering wing will fix the alignment by way of peg marking. There may be minor corrections required as per field conditions, which may not be more than 5% deviation within the RoW proposed. (emphasis supplied) The Advocate General justifies and sustains the changes in the alignment and also justifies successive DNs to suit such changes. We cannot disagree with