*THE HON’BLE MR. JUSTICE C.V.NAGARJUNA REDDY +WRIT PETITION No.18757, 14062 AND 22052 OF 2007 % 21-4-2008 +WRIT PETITION No.18757 OF 2007 #Sri Barla Rami Reddy. … Petitioner Vs. $The Government of Andhra Pradesh, Reptd., by its Prl. Secretary, Municipal Administration & Urban Development Department, Secretariat, Hyderabad and three others. … Respondents ! Counsel for the petitioner: Sri Challa Sita Ramaiah, Senior Counsel for Sri Sri Gummalla Vijay Kumar. ^Counsel for the respondents: Advocate General. < Gist: >Head Note: ? Cases referred: 1) 2007(8) SCALE 110 2) (1975) 1 SCC 284 3) AIR 1973 SC 1150 4) (1991) 4 SCC 224 5) (1996) 1 SCC 250 6) 2007) 6 SCC 292. 7) (1975) 4 SCC 285 8) 1998 (9) Supreme 361 9) (2004) 10 SCC 796 10) 2006(3) Supreme 49 11) 1883 Queen’s Bench Division Vol-XIII P-193 12) AIR 1957 SC 521 13)1953 Queen’s Bench Division P-18 14) 1956 (3) All England Reports 939 15) AIR 2006 SC 1350 16) 31 L Ed 2d 636 = 405 US 727 17)1926 S.C.Reporter’s Edn. 365-397 IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) PRESENT: THE HON’BLE MR. JUSTICE C.V.NAGARJUNA REDDY MONDAY, THE 21ST DAY OF APRIL, TWO THOUSAND EIGHT ONLY WRIT PETITION No.18757, 14062 AND 22052 OF 2007 WRIT PETITION No.18757 OF 2007 Between: Sri Barla Rami Reddy. … Petitioner AND The Government of Andhra Pradesh, Reptd., by its Prl. Secretary, Municipal Administration & Urban Development Department, Secretariat, Hyderabad and three others. … Respondents Counsel for the petitioner: Sri Challa Sita Ramaiah, Senior Counsel for Sri Sri Gummalla Vijay Kumar. Counsel for the respondents: Advocate General. This Court made the following: COMMON JUDGMENT: The Introduction: These three Writ Petitions raise common issues of facts and law. Hence, they are being disposed of together. The petitioner in Writ Petition No.18757 of 2007 owns an extent of Ac.6.20 guntas; the petitioners in Writ Petition No.14062 of 2007, who are two in number, together own Ac.9.39 guntas; and the four petitioners in Writ Petition No.22052 of 2007 together own about Ac.4.19 guntas in various survey numbers of Narsingi village, Rajendra Nagar Mandal, Ranga Reddy District. Respondent No.1 initiated proceedings under the Land Acquisition Act, 1894 (for short “the 1894 Act”) for acquisition of the above-mentioned extents of lands, along with the lands belonging to others, for the purpose of construction of Outer Ring Road (for short “the ORR”). For the lands covered by Writ Petition Nos.18757 and 14062 of 2007, notification under Section 4(1) of the 1894 Act was issued on 4-4-2006; declaration under Section 6 of the 1894 Act was published on 6-4-2006; and Award was passed on 27- 5-2006. The respondents claim that they have taken possession of the lands on 7-7-2006. The lands covered by Writ Petition No.22052 of 2007 were notified under Section 4(1) of the 1894 Act on 13-12-2005. The petitioners claimed to have filed objections in response to the notice issued under Section 5-A of the 1894 Act. The Award was passed on 1-10-2007 and petitioners received notices dated 3-10- 2007 issued under Section 12(2) of the 1894 Act on 8- 10-2007. Thus, all these three Writ Petitions were filed after the Awards were passed. PLEADINGS OF THE PETITIONERS: The gist of the pleadings contained in the affidavits originally filed and the additional grounds is summarized hereunder: The Government constituted Hyderabad Urban Development Authority (for short “the Authority) under Section 3 of the Urban Areas (Development) Act, 1975 (for short “the 1975 Act”). It is a corporate body. It has the powers to acquire and dispose of property, both movable and immovable. The objects of the Authority are to promote and secure development of all or any of the areas comprised in the development area. The Authority carries out civic survey and prepares Master Plan. It defines Zones and indicates the manner in which the land or each Zone is proposed to be used and the stages by which the development would be carried out. Along with the Master Plan, the authority should prepare a Zonal Development Plan, which contains the land use for roads, housing etc. Before submitting the draft Master Plan to the Government for approval, the Authority shall give an opportunity to every local authority and any person, who would like to file objections and suggestions to the draft Master Plan, and after its approval it will come into operation. That, unless the Master Plan comes into operation, no development can be carried out. The authority can modify the Master Plan by virtue of the power conferred under Section 12(1) of the 1975 Act without effecting important alterations in the character of the Plan and which do not relate to the extent of the land uses or the standards of population density. Under sub-Section (2) of Section 12 of the 1975 Act, the Government is empowered either suo motu or on a reference from the Authority to make any modifications to the plan, whether such modifications are of the nature specified in sub-Section (1) or otherwise. This power is subject to the same restrictions as in Section 12(1) of the 1975 Act and not absolute. It cannot make major changes and the words “or otherwise” must be read as ejusdem generis. That, 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 Authority 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. Even otherwise, unless the modified Master Plan comes into operation, no development can be carried out. The modifications proposed to be made to the 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. Unless the modified Master Plan comes into operation, no acquisition of the lands can be made. The process of acquisition was initiated without converting the agricultural land for non-agricultural use as per the provisions of the A.P. Agricultural Land (Conversion for Non-Agricultural purpose) Act, 2006. That, memo dated 26-5-2007 issued by the Government of Andhra Pradesh, Municipal Administration & Urban Development Department, inviting objections and suggestions for the extensive modifications to Master Plan was published in A.P. Gazette dated 31-5-2007. Even without following the procedure contemplated under the provisions of the 1975 Act for change of the Master Plan and without considering the objections of the public, proceedings under the 1894 Act have been initiated. That, the respondents twisted, turned and shifted the alignment of the ring road and also shifted 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. In order to avoid the acquisition of the lands of men-in-power and to boost up the land prices of the lands in Kokapet village, the alignment was shifted without any scientific survey and sufficient reasons. In G.O.Ms.No.8 dated 12-12-2005 it is stated that the change of alignment was necessitated due to several representations from the general public and the People’s Representatives requesting the Government to make alterations in certain places and considering the said representations, the Government appointed a Committee and on the report of the Committee, the Government approved the change of alignment. The changed alignment suffers from basic infirmities such as improper connectivity to Phase-I Outer Ring Road at Poppalaguda; 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 acquisition of excess land is involved. That, the Alignment Committee noticed existence of water bodies in Survey Nos.291, 298, 299 and 300. The A.P. Pollution Control Board proposed shifting of the alignment by 2 to 3 Kms., from the catchment area to protect the lakes; whereas the changed alignment is nearer to the lakes, which seriously affects the lakes and environment. PLEADINGS OF THE RESPONDENTS: The Project Director & Special Collector (Land Acquisition), Outer Ring Road, filed separate but similar counter-affidavits in these Writ Petitions and the following is the gist of their stand as reflected in these counter-affidavits. That, the Outer Ring Road (for short “ORR”) is an important infrastructure initiative in Hyderabad Metro Region undertaken by the Hyderabad Urban Development Authority (for short “the HUDA”) to provide connectivity to various State Highways and National Highways and to facilitate Intra-City and Inter-City Traffic in view of the burgeoning urbanization and increasing traffic congestion in the City. 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 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. That, in July, 2004, the Government of Andhra Pradesh reexamined the project features. Based on the recommendations of a group of Senior Officials in Government and 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 HUDA to take up the project with its own funds. In April, 2005 the ORR alignment was finalized by 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 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. That, originally the alignment notified in the Western Sector was passing through Poppalguda, Vattinagulapally, Janawada, Kollur and Edulanagulapally villages. The said alignment was prepared in those areas based on the HUDA base maps. Representations were received from the public that the alignment in Poppalguda village is going through the hillocks, tanks/lakes and habitations. At that time, no ground survey or alignment of base map survey of the HUDA with the aid of more accurate maps of GSI was done. The notified alignment was inspected at Poppalguda by the technical wing of 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 ORR was not contemplated and the 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, M/s.Aarvee Associates were appointed for the Detailed Project Report preparation for Phase-I 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 ORR. That, the proposed trumpet interchange for signal free movement of traffic requires huge area of about Ac.50.00 guntas approximately. When the trumpet interchange was incorporated at Poppalguda 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 ORR. The Committee on the alignment of 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 Committee recommended for a detailed survey. That, the Alignment Committee, which has examined various objections, gave its recommendations on the final alignment, which was approved by the HUDA and eventually approved by the State Government vide G.O.Ms.No.8 dated 12-12-2005. The Alignment Committee’s recommendations were accepted by the Government on the Western Sector alignment relating to Poppalguda, Kollur, Janawada etc. That, there is no necessity of completing the procedure for modification of the Master Plan as contemplated in Section 12(2) and (3) of the 1975 Act before acquiring the lands, as the mere act of land acquisition does not constitute “development” under Section 2(e) of the said Act. Acquisition of land only leads to change of its ownership and the same does not in any way violate the provisions of Section 13. That, 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. Ground conditions may always require a detailed project alignment which may be at variance with the 1980 alignment and this is true for all road projects and also for all road-widening schemes in the city wherein a Master Plan road alignment is translated into a road development plan, which depicts the exact alignment of the road. Land acquisition can be done only on the basis of such a detailed project alignment and not as per the 1980 Master Plan alignment. Therefore, modification to Master Plan is neither a pre-requisite for land acquisition nor the present land acquisition can be said to be contrary to the plan in force. That, 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 the 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 ORR is a part of the plans in force, deviations on technical ground at project stage are common. The present Master Plan revision is not at all linked with the ORR project and it is a sheer coincidence that the implementation of ORR and the 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 presently 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. That, the allegations of malafides are vague, untenable and without any basis; and change of alignment was made under the circumstances, which were explained, in detail, in the counter-affidavits. The Special Collector, ORR, has competence to acquire the lands in view of G.O.Ms.No.442, Municipal Administration, dated 19-10-2004 under which a separate unit, consisting of Special Collector (L.A) and Special Deputy Collector, was constituted to finalize the land acquisition proceedings. In exercise of the powers under Section 3-A of the 1975 Act the Government issued G.O.Ms.No.459 dated 8-4-2005 authorizing the Special Collector to perform the functions on behalf of the State Government. That, the allegation that the present alignment of the ORR is not cleared by the Pollution Control Board is false. The Pollution Control Board of Andhra Pradesh, after being satisfied with the present alignment, gave consent for establishment, vide order dated 4-10-2006. The contention that there are water bodies in the present alignment in Survey Nos.291, 298, 299 and 300 is not true. On physical verification and also verification of the record, it was found that the said survey numbers are not covered by any water body. Survey Nos.291 and 298 are patta lands and Survey Nos.299 and 300 relate to evacuee property lands (dry lands). This issue has been decided by a Division Bench of the High Court by its judgment dated 1-10-2007 in Writ Petition Nos.22809 and 22810 of 2006. The reliance on G.O.Ms.No.479, Municipal Administration, dated 2-9- 1994, which approved HUDA Master Plan showing Survey No.291 as water body is of no avail to the petitioners because on ground verification it is found that there is no water body. At any rate, existence or otherwise of water bodies alone was not the consideration for changing the alignment and various other relevant factors were taken into account, as explained in the counter-affidavits, in changing the alignments. Even assuming that water bodies exist, necessary steps would be taken to protect the same. REPLY AFFIDAVITS: Separate reply affidavits, but with identical averments, are filed by the petitioners. They denied their physical dispossession. They further denied existence of ORR in the existing Master Plan. It is stated, “the petitioner is not aware of any existence of Outer Ring Road in 1980 Master Plan”. Reliance is placed on the counter-affidavit filed in Writ Petition No.8124 of 2007 stating that it was mentioned therein that the Project of ORR was initiated in the year 2001. The petitioners also placed reliance on Memo No.9225/105 dated 26-5-2007 wherein objections were invited under sub-Section (3) of Section 12 of the 1975 Act against the draft revised Master Plan comprising 18 Zonal segments and land use etc. Item-7 of the said memo was referred to, to substantiate their plea that the draft proposal under the said item was in relation to incorporation of ORR alignment. It is pleaded that having invited the objections and before the Government of Andhra Pradesh formulated any scheme for formation of ORR, initiation of proposal for acquisition of Land under the 1894 Act is bad in the eye of law. The allegation that implementation of ORR and revision of Master Plan are a sheer co-incidence, is denied as not correct. The petitioners referred to the constitution of Urban Development Authority as a body corporate under Section 3(3) of the 1975 Act, the objects for which the authority is constituted, its powers and duties, carrying out of civic survey, preparation of master plan and zonal development plan containing land use for roads, housing etc. They have also reiterated 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. While denying the stand of the respondents that there were no water bodies on the proposed alignment, the petitioners stated that the judgment in Writ Petition No.22809 of 2006 is subject matter of SLP before the Supreme Court and that leave was granted on 3-1-2008 directing the parties to maintain status quo in relation to possession of the property, which was subject matter of the Civil Appeal. The petitioners emphasized the need for the State to protect the water bodies as per the law laid down by the Supreme Court. They also pleaded that the new alignment contravenes G.O.Ms.No.111, dated 8-3-1996 and G.O.Ms.No.86 dated 3- 3-2006, which prohibited construction on the water bodies. They also disputed the finding of the Technical Committee’s report that the proposed alignment is 4 to 5 K.Ms away from the two lakes. The petitioners relied on Zonal Development Plan of Poppalguda village and the Gazette to show that water bodies exist in Survey No.291. The petitioners reiterated that the acquisition of the lands, without approval of the Master Plan, is contrary to the provisions of the 1975 Act. THE CONTENTIONS:- Sri Challa Sita Ramaiah, learned Senior Counsel for the petitioners, advanced the following contentions: (i) Unless the Master Plan, as modified, is finalized, land acquisition proceedings cannot be initiated; (ii) (a) Modification of a Master Plan can be only of a minor nature and no extensive changes of the existing Master Plan are permissible in the name of modification. As a necessary corollary, the procedure for preparing a Master Plan envisaged under the provisions of the 1975 Act shall be undertaken for making major changes in the Master Plan; (b) If the power under Section 12(2) of the 1975 Act is absolute, the Government cannot enlarge the power of the Authority under Section 12(1) by delegation and it cannot delegate its power under Section 12(2) to the Vice-Chairman of the Authority; and (iii) The proposed ORR passes through water bodies and it does not fulfill the criteria prescribed by the A.P. Pollution Control Board in its proceedings dated 4-10-2006. Opposing the contentions of the learned senior counsel for the petitioners, the learned Advocate General advanced the following contentions: (i) The very premise of the petitioners that ORR is envisaged for the first time in the draft Master Plan is erroneous and the 1980 Master Plan itself envisaged ORR. What is presently done is only adjustment of alignment; (ii) Assuming that ORR is proposed for the first time in the draft Master Plan, there is no requirement under the provisions of the 1975 Act to get the Master Plan approved first before acquiring the lands; (iii) Under Section 12(2) of the 1975 Act no limit is prescribed on the power of the State Government regarding the nature and magnitude of the modifications of the Master Plan. Similarly, the power and discretion vested in the Government to delegate the function of suggesting modifications to the Master Plan is absolute and unrestricted, and in the absence of any restrictions with respect thereto, no fetters can be read into the provisions; and (iv) No water bodies exist on the proposed alignment. At any rate, since, admittedly, no water bodies existed in the lands of the petitioners, they cannot seek invalidation of acquisition of their lands on the purported ground of existence of water bodies on others’ lands. THE POINTS: Having regard to the rival contentions of the parties, the following points arise 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? THE DEBATE:- Before dealing with the points framed above, it is necessary to refer to the relevant statutory provisions. The 1975 Act received the Presidential assent on 20-1-1975 and published in the A.P. Gazette on 27-1- 1975. The long title of the Act indicates that the Act was intended to provide for development of urban areas in the State of Andhra Pradesh according to plan and for matters ancillary thereto. Section 2(b) defined “authority” as 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 the Act. Section 2(e) defined “development” as the carrying out of all or any of the works contemplated in a master plan or zonal development plan referred to in the Act and