THE HON’BLE SRI JUSTICE B.PRAKASH RAO AND THE HON’BLE SRI JUSTICE B.SESHASAYANA REDDY Writ Appeal Nos.491, 493 and 494 of 2008 (Dated : 15.06.2010) Between: Sri Barla Rami Reddy S/o Sri Kota Reddy (Appellant in Writ Appeal No.491 of 2008) Sri K.Damodar Prasad S/o Sri K.Ranjit Kumar and others (Appellants in Writ Appeal No.493 of 2008) Sri P.Hanumantha Rao S/o Narsaiah Smt.P.Seetha Mahalaxmi W/o Sri P.Hanuantha Rao (Appellants in Writ Appeal No.494 of 2008) ...APPELLANTS A n d The Government of A.P., rep. By its Principal Secretary, Municipal Administration & Urban Development Dept., Secretariat, Hyderabad and others ...RESPONDENTS THE HON’BLE SRI JUSTICE B.PRAKASH RAO AND THE HON’BLE SRI JUSTICE B.SESHASAYANA REDDY Writ Appeal Nos.491, 493 and 494 of 2008 %15.06.2010 # Sri Barla Rami Reddy S/o Sri Kota Reddy (Appellant in Writ Appeal No.491 of 2008) Sri K.Damodar Prasad S/o Sri K.Ranjit Kumar and others (Appellants in Writ Appeal No.493 of 2008) Sri P.Hanumantha Rao S/o Narsaiah Smt.P.Seetha Mahalaxmi W/o Sri P.Hanuantha Rao (Appellants in Writ Appeal No.494 of 2008) ...APPELLANTS A n d $ The Government of A.P., rep. By its Principal Secretary, Municipal Administration & Urban Development Dept., Secretariat, Hyderabad and others ...RESPONDENTS < GIST: > HEAD NOTE: !Counsel for Appellants: Sri Challa Sitaramaiah ^Counsel for Respondent: Advocate General ? Cases referred AIR 1973 SUPREME COURT 1150 (1975) 1 Supreme Court Cases 284 (1975)4 Supreme Court Cases 285 (1975) 2 Supreme Court Cases 547 (1991)4 Supreme Court Cases 224 (1994)2 Supreme Court Cases 489 (1996)1 Supreme Court Cases 250 (2004)10 Supreme Court Cases 796 2006(3) Supreme 49 (2007)6 Supreme Court Cases 292 1989 Supp(2) Supreme Court Cases 656 (1999) 2 Supreme Court Cases 718 (2001)2 Supreme Court Cases 62 2007(8) SCALE 110 1883 Vol. XIII THE HON’BLE SRI JUSTICE B.PRAKASH RAO AND THE HON’BLE SRI JUSTICE B.SESHASAYANA REDDY Writ Appeal Nos.491, 493 and 494 of 2008 COMMON JUDGMENT: (Per Hon’ble Sri Justice B.Seshasayana Reddy) These three Writ Appeals are directed against the common judgment dated 21.04.2008 passed in Writ Petition Nos.18757, 14062 and 22052 of 2007, whereby and whereunder, a learned Single Judge of this Court dismissed all the three writ petitions. 2. More precisely, Writ Appeal No.491 of 2008 is directed against the judgment passed in Writ Petition No.18757 of 2007, Writ Appeal No.493 of 2008 is directed against the judgment passed in Writ Petition No.22052 of 2007, and Writ Appeal No.494 of 2008 is directed against the judgment passed in Writ Petition No.14062 of 2007. 3. Background facts, in a nutshell, leading to filing of these three writ appeals are:- P.Hanumantha Rao and Smt. P.Seetha Mahalaxmi are the petitioners in Writ Petition No.14062 of 2007. They are the owners and possessors of Ac.9.39 gutnas comprising Survey Nos.43, 44, 58 and 96 of Narsingi village. Notification under Section 4(1) of the Land Acquisition Act, 1894 (for short, “the 1894 Act”) was issued on 4.4.2006 proposing acquisition of lands for formation of Outer Ring Road (`ORR’) junction. Declaration under Section 6 of the 1894 Act was published on 6.4.2006. An award came to be passed on 27.5.2006. They filed writ petition on 02.7.2007 assailing initiation of proceedings by the 1st respondent under the provisions of the 1894 Act. The petitioners earlier filed Writ Petition No.15887 of 2006 seeking direction to the respondents not to acquire lands owned by them or in the alternative allot equal extents of lands belonging to the Government available just nearby in Survey No.205, situated at Narsingi Village, Rajendernagar Mandal, Ranga Reddy District. The said writ petition came to be disposed on 26.9.2006. The relevant portion of the order reads as hereunder:- “ In view of the submission and after hearing the learned Government Pleader for Acquisition and Mr.P.Rajagopala Rao, the writ petition is disposed of directing the respondents to consider the petitioners’ representation dated 13.07.2006 for grant of alternative land in lieu of the acquired land and dispose of the same in accordance with the powers available under Section 31(3) of the Act after evolving a transparent and fair package of guidelines/policy which would be equitably applied to all persons similarly situated in the context of Article 14 of the Constitution of India. There shall be no order as to costs”. 4. The Project Director, ORR and Special Collector (Land Acquisition), Hyderabad Urban Development Authority considered the representation of the petitioners and rejected their request for allotment of equal extent of land in Survey No.205 of Narsingi village or any other Government land in lieu of acquired land, vide proceedings No.D/ORR/510/2006, dated 26.02.2007. It is useful to refer the relevant portion of the proceedings, which reads as hereunder:- “ The Government after considering the representations of the farmers who are loosing lands for formation of Outer Ring Road have evolved a transparent policy and package of compensation for the affected families of Outer Ring Road Project and issued implementation instructions in G.O.Ms.No.14 dated 18-12-2006 which relates to the Phase-II villages of land acquisition. Whereas the lands of petitioners in Narsingi village on 27-5-2006. The HUDA has taken a decision in its 194th meeting held on 29-12-2006 to extend the compensation package benefits to the phase-1 village which are similar to Phase-II villages. Accordingly implementation instructions were issued by the undersigned vide Proc.No.C/1812/2006 dated 08-01-2007. The representation of the petitioner dated 01-12-2006 has been considered in the light of the compensation package approved by HUDA on 29-12-2006. The details of compensation package applicable to all land loosers of Outer Ring Road Project are as follows: 1. There shall be an enhancement of 100% over the awarded amount passed by the L.A.O. The L.A.O Unit-VII has passed award in respect of petitioners land on 27-05-2006 fixing the compensation of Rs.9,92,880/- per acre including all benefits viz., 30% solatium and admissible 12% Additional Market Value. Under the compensation package the petitioners are eligible for enhanced compensation @ Rs.19.85 Lakhs per acre. 2. As per compensation package land loosers are eligible for allotment of 400 Sq. yards of land for each acre lost subject to a maximum of 1200 Sq. Yards if the land lost by them exceeds 80% of the total holding of the family in the village. 3. The petitioner are eligible for the above package subject to fulfillment of conditions and filing consent for the package approved by the Govt./HUDA. In view of the above, the request of the petitioners for allotment of equivalent extent of land in Sy.No.205 or any other government land in lieu of acquired land is not permissible as per the package announced by the HUDA/Government and they are eligible only for the compensation package approved by the Govt/HUDA as mentioned above which is applicable to all the land loosers of Outer Ring Road Project. Accordingly representation dated:13-07-2006 and representation dated: 01-12-2006 have been disposed off in the above terms”. 5. Thereafter they filed Writ Petition No.14062 of 2007 on 2.7.2007. 6. Barla Rami Reddy is the petitioner in Writ Petition No.18757 of 2007 filed on 3.9.2007. He is the owner and possessor of Ac.6-20 guntas in Survey No.205/2. Notification under Section 4(1) of the 1894 Act was issued on 4.4.2006 proposing acquisition of lands for public purpose to wit for formation of Outer Ring Road junction at Narsingi. Declaration under Section 6 of the 1894 Act was published on 06.04.2006. He submitted representation on 26.4.2006 to shift the ORR. Award came to be passed on 27.5.2006. 7. K.Damodar Prasad, K.Vamshidar Prasad, K.L.Rupender and Smt. Prema Ranjit are the petitioners in Writ Petition No.22052 of 2007 filed on 11.10.2007. K.Damodar Prasad is the owner and possessor of the lands in Sy.Nos.181, 182, 183 and 184 admeasuring Acs.0.09, 0.19, 0.14 and 0.11 guntas respectively. K.Vamshidar Prasad is the owner and possessor of the lands in Sy.Nos.181, 182, 183 and 184 admeasuring Acs.0.09, 0.19, 0.15 and 0.11 guntas respectively. K.L.Rupender is the owner and possessor of the lands in Sy.Nos.181, 182, 183 and 184 admeasuring Ac.0.08, 0.20, 0.14 and 0.12 respectively. Smt.Prema Ranjit is the owner and possessor of the lands in Sy.Nos.181, 182, 183 and 184 admeasuring Ac.0.08 ½, 0.20, 0.15 and 2.34 guntas respectively. 8. Notification under Section 4(1) of the 1894 Act proposing acquisition of lands was issued on 13.12.2005. The petitioners filed objections to the acquisition of their lands. An enquiry as contemplated under Section 5A of the 1894 Act came to be conducted. Thereafter, an award came to be passed on 01.10.2007. Notice under Section 12(2) of the 1894 Act came to be issued to the petitioners on 3.10.2007. 9. By the time notifications were issued under Section 4(1) of the 1894 Act proposing acquisition of lands owned by the petitioners in all the writ petitions, the Government approved the report of the ORR alignment committee and issued G.O.Ms.No.8, Infrastructure & Investment (IID-2) Department, dated 12.12.2005. 10. The grievance of the appellants/writ petitioners, as set out in their affidavit filed in the respective writ petitions, is that:- (a) Unless the Master Plan comes into operation, no development can be carried out under the provisions of Andhra Pradesh Urban Areas (Development) Act, 1975 (for short, “the 1975 Act”). The 1994 Master Plan did not set apart any land for use of a ring road. Laying down a ring road is a major change and a major modification. The HUDA must go through the procedure and prepare another Master Plan but cannot modify the Master Plan of 1994. Unless the Master Plan is approved and comes into operation, no development activity can be undertaken. The modifications proposed to be made in 1994 Master Plan completely alters the original Master Plan and it amounts to bringing forth a new Master Plan. The procedure contemplated under the 1975 Act for preparing the Master Plan is therefore, required to be followed. Initiation of proceedings under the Land Acquisition Act for the purpose of Outer Ring Road without converting the agricultural land for non-agricultural purpose as per the provisions of A.P. Agricultural Land (Conversion of Agricultural lands to Non-Agricultural Purpose) Act, 2006 cannot be sustained. b) The HUDA failed to follow the procedure contemplated under the provisions of the 1975 Act for change of the Master Plan and they did not even consider the objections of the public before initiating the proceedings under the provisions of the 1894 Act. The respondents shifted the alignment of the ring road as well as the junction from Poppalguda to Narsingi on the express highway by disturbing the straight alignment made earlier with several twists and turns only to target the lands belonging to the petitioners. The new alignment proposed by the respondents passes through the water body in Survey Nos.291, 298, 299 and 300 of Poppalguda village. The respondents shifted the alignment without any scientific survey and sufficient reasons. The changed alignment based on the report of the Committee suffers from basic infirmities such as improper connectivity to Phase-1 Outer Ring Road at Poppalguda; the longitudinal gradient will be almost 1 in 50 for a stretch of 2.5 K.Ms. which is not advisable for a design speed of 120 KMPH; and the volume of rock cutting results in increased cost of execution of the project and involvement of excess land in acquisition. The changed alignment is nearer to the lakes, which seriously affects the lakes and environment. 11. The respondents filed counter affidavit traversing the averments made in the affidavit filed in the respective writ petitions. 12. The case of the respondents, in brief, is :- a) The HUDA engaged M/s.MECON as consultants in the year 2001 for feasible study of the ORR Project. The ORR was conceived as 109 Km four-line connectivity around the city. The land acquisition for Phase-I of about 33 Kms from Miyapur to Gachibowli segment was also initiated based on the consultancy report. The proposed road was passing through the well-developed areas in Hi- tech city resulting in the proposal for issuance of notification for acquisition of large-scale properties and disturbing the habitations. Therefore, the Government of Andhra Pradesh re-examined the project features in July, 2004. Basing on the recommendations of senior officials in the Government and the HUDA, the concept was revised and the project was decided to be taken as a “Green Field Project” through open areas avoiding major settlements and habitations. Accordingly, a revised plan was finalized for taking up construction of ORR around the twin cities. The Government issued G.O.Ms.No.442, dated 19-10-2004 mandating the HUDA to take up the project with its own funds. In April 2005, the ORR alignment was finalized by the HUDA as 159 KM road around twin cities. The alignment plans were approved in four sectors - Western, Northern, Eastern and Southern- by the Vice Chairman of the HUDA. The Special Collector, ORR, notified the required lands under Section 4(1) of the 1894 Act for almost all the sectors between 13th April, 2005 and 21st April, 2005. The notified alignment was inspected at Poppalguda by the technical wing of the ORR project and the said inspection revealed that the alignment was passing through hillocks involving huge rock cutting and will be uneconomical. At the time of notification in April, 2005, the junction of Phase-I and Phase-II alignments of the ORR was not contemplated and detailed design of the interchange, its dimensions and the area required for it was not available as the Detailed Project Report was not prepared by them. Subsequently, the consultants-M/s.Aarvee Associates were appointed for the Detailed Project Report preparation for Phase-1 of ORR during the last week of April, 2005. The consultants proposed a trumpet interchange at T-junction point, where Phase II joins Phase I of the ORR. When the trumpet interchange was incorporated at Poppalaguda junction, the same was affecting some structures, including a school building. This necessitated an alternative alignment for the interchange of Phase-I and Phase-II of the ORR. The Committee on the alignment of the ORR comprising the Principal Secretary, Infrastructure & Investment Department, Managing Director, INCAP; Vice-Chairman, HUDA and the Project Director, ORR noticed the above mentioned set backs; and the Principal Secretary, Infrastructure & Investment Department constituted a departmental committee for the purpose of examining various alternatives in the Western Sector and to propose the best possible alignment keeping financial, environmental and technical considerations in view. The Alignment Committee examined various objections and gave its recommendations on the final alignment, which came to be approved by the HUDA and the State Government, vide G.O.Ms.No.8 dated 12.12.2005. The ORR is a part of the existing Master Plan, which was notified in the year 1980 with 1:50000 scale in which 1 cm represented a distance of half a k.M while the project implementation plans are drawn to very minute scales like 1:500 in which 1 cm., represents 5 meters. b) The process of modification of Master Plan and land acquisition are fundamentally distinct and different from each other and in the event of a certain utility project like a road becoming an urgent necessity in public interest, such as providing connectivity to an International Airport as in the present case, nothing in the 1975 Act prevents taking up of a project of this nature and since the ORR is already a part of the plans in force; deviations on technical grounds at project stage are common. The Master Plan revision is not at all linked with the ORR project and it is a sheer coincidence that implementation of the ORR and overall revision of the Master Plan of the HUDA area are happening at the same time. The current modification to Master Plan was initiated as early as in 2003 and is not related to the ORR project. Incorporating the finalized alignment of the ORR project is as per the Master Plan in force and not dependent on the current Master Plan modification exercise. The legality of the land acquisition depends on the specific provisions of the 1894 Act and since the ORR project is as per the plan in force, proceedings under the 1975 Act have no bearing on the said land acquisition proceedings. c) The Pollution Control Board, Andhra Pradesh, after being satisfied with the present alignment, gave consent for establishment, vide order dated 4.10.2006. The Survey Nos.291, 298, 299 and 300 are not covered by any water bodies. Survey Nos.291 and 298 are patta lands and Survey Nos.299 and 300 relate to evacuee property lands (dry lands). 13. The appellants/writ petitioners filed their reply affidavits in the respective writ petitions. They reiterated their contention in the respective reply affidavits that unless the Master Plan comes into operation, no development can be carried out, and the modifications envisaged in Section 12(1) of the 1975 Act could be only minor modifications and changes. The new alignment contravenes G.O.Ms.No.111, dated 8.3.1996 and G.O.Ms.No.86, dated 3.3.2006, which prohibit construction on the water bodies. 14. The learned Single Judge, on hearing the counsel appearing for the parties, formulated the following points for consideration:- “ (1) Whether proceedings for acquisition of land for development cannot be initiated and land acquired without the approval of amendment to the Master Plan ? (2) Whether power of the State Government under Section 12(2) of the 1975 Act is limited to modification of Master Plan involving minor but not extensive changes? (3) Whether delegation of power of State Government under Section 12(2) of the 1975 Act in favour of the Vice Chairman of the Authority is invalid and whether such delegation amounts to enlargement of the Authority’s power under Section 12(1) of the 1975 Act? and (4) Whether the proposed alignment affects existing water bodies and failed to fulfill the criteria prescribed by the Andhra Pradesh Pollution Control Board?” 15. The learned Single Judge answered all the points against the writ petitioners and in favour of the respondents, and thereby, dismissed all the three writ petitions, by the common judgment dated 21.04.2008. Hence, these three Writ Appeals. 16. Heard Sri Challa Sitaramaiah, learned Senior Counsel appearing for the appellants in W.A.Nos.491 and 494 of 2008 and Sri B.V.Subbaiah, learned counsel appearing for the appellants in Writ Appeal No.493 of 2008 and the learned Advocate General appearing for the respondents. 17. Sri Challa Sitaramaiah, learned senior counsel contends that unless the Master Plan as modified is finalized, land acquisition proceedings cannot be initiated. His further submission is that modification of Master Plan can be only of a minor nature and cannot make extensive changes of the existing Master Plan. Any modification of the Master Plan should be through the procedure prescribed under the Andhra Pradesh Urban Areas (Development) Act, 1975. The Government cannot delegate its powers vested under Section 12(2) of the 1975 Act to the Vice Chairman of the Authority. The present plan envisaged in respect of 2nd ORR in the western sector passes through water bodies and does not fulfill the criteria prescribed by the A.P. Pollution Control Board, dated 4.10.2006. In elaborating his arguments, learned Senior Counsel took us to the provisions of the 1975 Act very extensively. It is profitable to refer the provisions of the 1975 Act on which much emphasis has been laid by the learned Senior Counsel and they are Sections 2(e), 3, 6, 8, 12 and Section 13 of the 1975 Act. 18. Section 2(e) defines `development’ and Section 2(f) defines `development area’. `Development’ as defined in Section 2(e) reads as hereunder:- “2(e): `development’ with its grammatical various 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; (ii) 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 appratus, including the breaking open of any street or other land for that purpose; (iv) the use of any building or other land within the curtilage 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 of any purpose specified in this clause of any building occupied together with the land so used;” 19. `Development area’ as defined in Section 2(f) reads as hereunder:- `development area’ means any urban area or group of urban areas declared to be a development area under sub-section (1) of Section 13; 20. Section 3 deals with constitution of Urban Development Authority. Sub-section (3) of Section 3 deals with composition of Urban Development Authority, which reads as hereunder:- “(3) The authority shall consist of the following members, namely:- (a) a Chairman, to be appointed by the Government; (b) a Vice-Chairman, to be appointed by the Government, who shall be a whole-time chief executive officer of the Authority; (c) three members from among the Members of the State Legislature representing the development area, to be nominated by the Government; (d) two Councillors of the Municipal Corporation of Hyderabad or of the municipality, as the case may be, comprised within the development area, to be nominated by the Government; (e) one officer, representing the Municipal Corporation of Hyderabad or the Municipal Administration Department of the Government, to be nominated by the Government; (f) one officer of the Town Planning Department of the Government, to be nominated by the Government; (g) one officer of the Finance Department of the Government, to be nominated by the Government; (h) Five other members, to be nominated by the Government.” 21. Section 6 deals with preparation of Master Plan and Zonal development plans. Sub-section (2) of Section 6 explains the Master Plan, which reads as hereunder:- “6(2): The Master Plan shall— (a) define the various zones into which the development area may be divided for the purposes of development and indicate the manner in which the land in each zone is proposed to be used (either after carrying out development thereon or otherwise) and the stages by which any such development shall be carried out; and (b) serve as a basic pattern of frame-work within which the zonal development plans of the various zones may be prepared” 22. Section 7 deals with preparation of Zonal development plans, which reads as hereunder: “7.Zonal development plans:- Simultaneously with the preparation of Master Plan or as soon as may be thereafter the Authority shall proceed with the preparation of zonal development plan for each of the zones into which the development area may be divided. (2) A zonal development plan may,- (a) contain a site plan and land use plan for the development of the zone and show the approximate locations and extents of land uses proposed in the zones for such purposes as roads, housing, schools, recreation, hospitals, industry, business, markets, public works and utilities, public buildings, public and private spaces and other categories of public and private uses; (b) specify the standards of population density and building density; (c) show every area in the zone which may, in the opinion of the Authority, be required or declared for development or re-development; and (d) in particular, contain provisions regarding all or any of the following matters, namely— (i) the division of any site into plots for the erection of buildings; (ii) the allotment or reservation of lands for roads, open spaces, gardens, recreation grounds, schools, markets and other public purposes; (iii) the development of any area, into a township or