M/S Jayabheri Properties Pvt.Ltd. & Ors vs State Of Andhra Pradesh & Ors

Properties Pvt. Ltd. and others, was taken up for 2

hearing and final disposal along with Civil Appeal

Nos.74 and 215 of 2008 arising out of SLP(C)No.

19633/07 and SLP(C)D.No.29751/07 respectively.

Since all the three appeals arise out of the same

set of facts and give rise to the same set of

issues, they have been taken up together for

hearing and final disposal.

2. Two writ petitions being Writ Petition

Nos.22809 and 22810 of 2006, were filed by the

appellants herein, whereas Writ Petition No.26996

of 2006 was filed by T. Chittaiah and three others

against the State of Andhra Pradesh and, in

particular, against the Hyderabad Urban Development

Authority (hereinafter referred to as the `HUDA').

The three writ petitions relate to the challenge

thrown to the acquisition of land comprised in

Survey Nos.176, 189, 190, 191, 197, 198, 199, 200,

201 and 202 of Narsingi Village and Survey Nos.292,

293 and 294 of Poppalguda Village of Rajendranagar 3

Mandal, Ranga Reddy District for the Outer Ring

Road (ORR) Project for the twin cities of Hyderabad

and Secunderabad.

3. The said project was for the purpose of

providing an Inner and Intermediate Ring Road and

an Outer Ring Road as part of the main circulation

system for traffic. In 1984, HUDA undertook a

detailed study for the development of the

Intermediate Ring Road, but there was little or no

progress in view of the growth of the city and

advent of the Information Technology industry and

various other educational and industrial projects.

In 2001, the Government of Andhra Pradesh initiated

a project known as the "ORR Project" and HUDA

engaged M/s. MECON for feasibility study.

4. The report submitted by M/s. MECON contemplated

the laying of a 109 km. 4-lane connectivity around

the city. In July, 2004, the project was re-

examined and on the recommendations made by senior 4

officers of the Government and HUDA, the project

was revised so that ORR could pass through open

areas avoiding major settlements and habitations.

The revised project was notified vide G.O.Ms.No.442

dated 19th October, 2004. The ORR alignment was

finalised in April, 2005, providing for a 159 km.

road around the twin cities and Ranga Reddy

District.

5. The final alignment comprised of Western,

Northern, Eastern and Southern sectors.

Thereafter, notifications dated 13th April, 2005 and

21st April, 2005, were issued under Section 4(1) of

the Land Acquisition Act, 1894, for acquisition of

various lands in different sectors. Since the

alignment of the Western Sector was through

Poppalguda and other villages which comprised

hillocks, tanks and lakes, representations were

made for change of the said alignment which led to

the inspection of the same by officers of the 5

technical wing of the ORR Project. It was found

that the alignment involving huge rock-cutting,

would be highly uneconomical. The proposed Trumpet

Interchange at the T-Junction point which was

incorporated at Poppalguda Junction, was found to

be affecting a water body and school building.

Accordingly, an alternative alignment was

considered by a Committee comprising senior

officials of the Government and HUDA which

inspected the alternative alignments and made

certain observations. Among the observations which

affected the parties to the present proceedings,

was observation (e), which, on the basis of a quick

survey, inter alia, provided as follows :

(i) The alignment should not affect any

water body, as it was

environmentally sensitive zone. 6

(ii) The alignment should involve minimal

rock cutting and filling, as the

terrain was uneven.

(iii) The alignment should involve minimal

bends and curves keeping the design

standards of the Outer Ring Road in

mind.

6. On the basis of the aforesaid suggestions, the

matter was assigned to NSS Associates, which

submitted its report on 15th November, 2005, with

the recommendation that the notified Western

Alignment joining Phase I at Poppalguda Village was

not advisable and an alignment passing through

Narsingi village should be worked out to lessen the

expenses for cutting through rock forming part of

the proposed alignment. After considering the

report submitted by NSS Associates, the Alignment

Committee, once again studied the entire matter and

recommended that the alignment suggested by NSS 7

Associates be accepted. One of the observations

made by the Alignment Committee with regard to the

Western Sector alignment, as suggested by NSS

Associates, is that the new alignment avoids all

water bodies in the area, which was an

environmentally sensitive area with a need to

protect all water bodies. Upon approval of the

State Government of the Report of the Alignment

Committee, a G.O.M. No.8 dated 12.12.2005 was

issued, whereby the Project Director and the

Special Collector, Land Acquisition, Outer Ring

Road Project, were permitted to notify the final

alignment of the ORR.

7. Subsequent thereto, on 13th December, 2005, a

notification was issued under Section 4(1) of the

Land Acquisition Act for the purpose of acquiring

the land belonging to the appellants situated at

Narsingi Village. Another notice of even date was

also issued seeking to acquire the lands belonging 8

to the appellants situated at Poppalguda Village.

On 12th January, 2006, objections were filed by the

appellants under Section 5-A of the Land

Acquisition Act, inter alia, contending as follows:

(a) there is a water body in the impugned

alignment in Survey No.291 of

Poppalguda Village.

(b) the change of alignment is illegal,

since the earlier alignment was

straight in shape and the impugned

alignment is taking several twists and

turns.

(c) earlier alignment was finalized upon

scientific survey and consequently

notifications were earlier issued on

21-4-2005, which was a straight

alignment.

(d) impugned alignment was finalized

without any proper survey and

verification. 9

Reference was also made to a Land Use

Certificate issued by HUDA on 16th January, 2006,

indicating that as per the approved Zonal

Development Plan, there was a notified water body

in the land comprising Survey No.291 of Poppalguda.

The objections filed under Section 5-A were fixed

for consideration on 17th July, 2006, before the

Special Deputy Collector and on 21st July, 2006, the

same were rejected and on 29th July, 2006, a Draft

Declaration was published under Section 6 of the

Land Acquisition Act, 1894.

8. In the meantime, on the complaints made on

behalf of the appellants, a CBI inquiry was

directed by the Central Government in respect of 5

projects undertaken by the Government, including

the ORR Project and the HUDA Township at Kokapet.

9. After considering the objections filed on

behalf of some of the land owners, a draft 10

declaration dated 29.7.2006 was issued under

Section 6 of the aforesaid Act and the same was

published in the Andhra Pradesh Gazette Extra-

ordinary of the same date. By virtue of the said

draft declaration under Section 6 of the Land

Acquisition Act, the Government of Andhra Pradesh

declared that the land specified in the schedule to

the draft declaration situated at Narsingi village

of Rajendranagar Mandal, Ranga Reddy District,

measuring 23 acres and 23 guntas was needed for a

public purpose, namely, for formation of the Outer

Ring Road. The same was challenged by the

Appellants herein by way of a Writ Petition on 24th

October, 2006, on several grounds. One of the

grounds taken was that the earlier notifications

under Sections 4 and 6 of the Land Acquisition Act

had been issued keeping in view the scientific

alignment of the road and suitability of the land

proposed to be acquired and more importantly that

the proposed acquisition did not cover the land of 11

Narsingi village. Perhaps, the most important

ground was that the land covered by Survey No.291

was shown to be a water body and Survey No.292 was

a green belt touching a water body.

10. It was also urged on behalf of the Appellants

that the alignment of the road had been altered

with mala fide intent to benefit certain people

belonging to the ruling party in power. It was also

claimed that the revised alignment would convert

the straight road into a serpentine road with the

sole object of ensuring that the Outer Ring Road

passed in a manner which boosted the value of the

land held by ruling party leaders, their well-

wishers and kith and kin.

11. Appearing for the appellants, Mr. Bhaskar

Gupta, learned Senior Advocate, submitted that

although one of the reasons given for alteration of

the alignment was that water bodies on the said

alignment would be disturbed, in fact, the 12

alternative alignment would affect a larger number

of existing water bodies and destroy particularly

Survey Nos.291, 298, 299 and 300. It was urged

that the objections filed by the appellants under

Section 5-A of the Land Acquisition Act, 1894,

which gives a very valuable right to the appellants

and had been given almost the same status as a

fundamental right by this Court, had been dealt

with perfunctorily revealing non-application of

mind as the above-mentioned survey numbers had, in

fact, been identified by the local authorities,

including HUDA, to be water bodies. Mr. Gupta

pointed out from the Land Use Information given by

HUDA on 16th January, 2006, that Survey No.291 was a

water body, Survey No.292 was used for wet and dry

agriculture and was touching a water body and

Survey Nos.293 and 294 were also used for wet and

dry agriculture.

13

12. He contended that apart from the above, even in

GOM No.647 dated 3rd October, 2001, prescribing

registration of water bodies, Survey No.291 under

the entries relating to Poppalguda Village was

shown to be "Kunta", meaning a tank.

13. Mr. Gupta submitted that in a letter dated 23rd

December, 2006, the Executive Engineer, Irrigation

Department, informed the appellants herein

regarding the existence of water bodies in Survey

Nos.291, 298, 299 and 300 of Poppalguda Village.

Mr. Gupta submitted that the concerned Executive

Engineer was suspended from service for giving a

true picture of the terrain to the appellants. It

was submitted that the report of the Central Water

Commission dated 27th November, 2007, which had been

submitted to this Court after inspection of Survey

Nos.291, 298, 299 and 300 on 24th November, 2007,

did not give a correct picture of the plots in

question, since the inspection was conducted during 14

the month of November which is a dry season in the

area when most of the tanks and water bodies tend

to dry up. Mr. Gupta submitted that although a

great deal of reliance has been placed by the

respondents on a letter written by another

Executive Engineer also dated 23rd December, 2006,

saying that there were no water bodies at all, such

a statement had to be incorrect in view of the

report of the Central Water Commission which also

indicated that there were water bodies, of which

some were dry. Mr. Gupta submitted that, in any

event, water bodies were required to be preserved

and could not be converted to other use, even if it

was for the public good.

14. In support of his aforesaid submissions, Mr.

Gupta referred to and relied upon the decision of

this Court in Intellectuals Forum, Tirupathi vs.

State of A.P. & Ors. [(2006) 3 SCC 549], wherein

the need for balancing water and land resources for 15

urban developmental needs was considered and it was

observed that the responsibility of the State to

protect the environment is now a well accepted

notion in all countries. Reference was also made

to a decision of this Court in Hinch Lal Tiwari vs.

Kamala Devi & Ors. [(2001) 6 SCC 496] and on a

decision of the Calcutta High Court in PUBLIC vs.

State of West Bengal [AIR 1993 Cal. 215], wherein

similar views have been expressed. Various other

decisions were also cited in this regard, which

will only have a multiplying effect to the views

already expressed in the earlier judgments.

15. On the question of the importance of Section

5-A, Mr. Gupta referred to several decisions of

this Court, such as : (i) Munshi Singh & Ors. vs.

Union of India [(1973) 2 SCC 337]; (ii) Union of

India & Ors. vs. Mukesh Hans [(2004) 8 SCC 14];

(iii) Hindustan Petroleum Corpn. Ltd. vs. Darius

Shapur Chenai & Ors. [(2005) 7 SCC 627]; and (iv) 16

Ram Krishan Mahajan vs. Union Territory of

Chandigarh & Ors. [(2007) 6 SCC 634], wherein the

importance of Section 5-A and the very valuable

right given to an individual, whose land is being

sought to be taken away, to raise an objection, has

been emphatically demonstrated.

16. Mr. Gupta submitted that since a very valuable

right to object to the acquisition of land has been

given to a person whose land was being sought to be

taken away, it was the statutory duty of the

Collector to consider the suitability of the land,

hear objections, if any, filed by any of the

persons affected, and, thereafter, to make his

recommendations on the objections so raised and

forward the same to the Government for further

action. Instead, the Collector appeared to be

helpless since a decision had already been taken by

the Government even before the publication of the

Section 4 notification. The report of the Collector 17

dated 23rd December, 1996, was nothing but an empty

formality.

17. Mr. Gupta also urged that the High Court, while

considering the two contradictory letters dated 23rd

December, 2006, written by two Executive Engineers,

erroneously chose to reject the letter which had

been relied upon by the Appellants merely on the

ground that according to the Gazette Notification

Survey No.291 falls in Narsingi Village, although,

the letters say that the same falls in Poppalguda

Village. Mr. Gupta submitted that the error

committed by the High Court would be evident from

the project description submitted by M/s NSS

Associates along with its communication dated 15th

November, 2005.

18. Mr. Gupta urged that the entire approach of the

High Court was erroneous and failed to take into

consideration the facts relating to the topography 18

of the land involving the changed alignment of the

ring road.

19. Mr. Altaf Ahmed, Senior Advocate, who appeared

for the Appellants in Civil Appeal Nos.74 of 2008

and 215 of 2008, reiterated Mr. Gupta's submissions

relating to denial of a proper opportunity to the

Appellants (land owners) under Section 5-A of the

Land Acquisition Act, 1894. Mr. Ahmed submitted

that while the public purpose of the project could

not be denied, what we are called upon to consider

is regarding the viability of the land included in

the second alignment since it passed through and

affected some of the water bodies in the area. Mr.

Ahmed referred to the report submitted by the

Committee comprised of the Principal Secretary,

Infrastructure and Investment Department (IIT),

Managing Director, INCAP and Vice-Chairman,

Hyderabad Urban Development Authority (HUDA) and

other officers of HUDA, the Chief Engineer and 19

Special Collector, ORR, wherein in paragraph (e)

the Committee was of the view that the data

available was insufficient and a quick survey

should be made, inter alia, to ascertain that the

alignment did not affect any water body since the

area was an environmentally sensitive zone.

20. Reference was also made to the final decision

of the Committee which was based on the

recommendations of the Pollution Control Board in

which it was stated that the alignment avoids all

water bodies in the area, which statement was

incorrect. Having regard to the admission

subsequently made by HUDA in the Land Use

Certificate issued on 16.1.2006 indicating that

plot No.300, which falls squarely on the new

alignment, was a water body together with plot

No.291.

21. Mr. Ahmed urged that based on an incorrect

appreciation of the topography relating to the 20

second alignment, a decision had been taken to act

on the basis of the new alignment, which, in fact,

could not have been proceeded with for the same

reason as was given for abandoning the first

alignment. Mr. Ahmed repeated Mr. Gupta's

submission regarding the two certificates dated 12th

August, 2009, which showed the existence of water

bodies in plot Nos.298, 299 and 300. He contended

that the creation of the second alignment was made

only to suit certain individuals who had an

interest in the lands which fell within the first

alignment.

22. Mr. Ahmed submitted that the decision taken to

approve the second alignment was motivated and was

contrary to the stand taken while disapproving the

first alignment.

23. Appearing for the Hyderabad Urban Development

Authority (HUDA), Mr. K.K. Venugopal, Senior

Advocate, referred to the report of the Alignment 21

Committee, on which strong reliance was placed by

him. Mr. Venugopal submitted that only after

examining the reports submitted by M/s NSS

Associates and M/s. Aarvee Associates that the

Alignment Committee set up by the Government

recommended change in the alignment of the Outer

Ring Road in the Poppalguda and Narsingi villages

in the Western Sector. Mr. Venugopal submitted

that proper care had been taken to avoid all major

structures, water bodies and habitations. Learned

counsel submitted that the change from the first

alignment to the second alignment was necessitated

by the fact that a large portion of the alignment

was comprised of hilly terrain which would involve

a considerable amount of rock cutting and that in

order to avoid the said hillocks at Poppalguda the

second alignment was proposed through Narsingi

village.

22

24. Mr. Venugopal submitted that a major portion of

the construction work in respect of the Western

Sector of the Outer Ring Road had been completed

and only the portion comprising about a two-

kilometer stretch, which is the subject matter of

the present appeals, was yet to be completed.

25. In this connection, Mr. Venugopal also referred

to the report of the visit of the Expert Central

Team of the Central Water Commission for an on the

spot study and to verify as to whether Survey

Nos.291, 298, 299 and 300 of Poppalguda Village

were, in fact, water bodies. The report of the

Central Water Commission indicated that none of the

three survey numbers, apart from Survey No.300,

disclosed the existence of a water body. On the

other hand, it was categorically indicated that

there was no water body existing as on the date of

inspection in plot Nos.291, 298 and 299. 23

26. Apart from the above, Mr. Venugopal submitted

that the possession of the land had already been

taken under Section 16 of the Land Acquisition Act,

1894, and as indicated hereinbefore, the major

portion of the construction work of the Outer Ring

Road had been completed and only the two ends of

the construction work had to be brought together in

order to complete the project. Mr. Venugopal

submitted that in respect of projects of national

importance, the balance of convenience and

inconvenience of the majority of the citizens would

have to be considered as opposed to private

interests. He referred to the decision of this

Court in Delhi Admn. vs. Gurdip Singh Uban [(2000)

7 SCC 296], wherein it was held that when several

plots of land are involved in an acquisition, the

objection of several individual plot owners could

not be entertained even under Section 5-A of the

1894 Act, particularly, because when several LA

Collectors were dealing with different segments of 24

the acquired lands, it would not be possible for

one of such Collectors to take a decision with

regard to the operation of the integrated project.

27. Mr. Venugopal ended on the note that since the

inconvenience that may be caused to a few

individual plot owners could not outweigh the

interest of the public, the appeal filed by M/s

Jayabheri Properties Pvt. Ltd. & others was liable

to be dismissed.

28. Mr. Anoop G. Chaudhari, Senior Advocate, who

appeared for the State of Andhra Pradesh, endorsed

the submissions made by Mr. Venugopal and added

that the Appellants could not be considered to be

"a person interested" within the meaning of Section

3(b) of the 1894 Act. He urged that the Collector

had duly applied his mind to the fact situation and

the decision ultimately taken did not merit any

interference.

25

29. Mr. A.K. Ganguli, Senior Advocate, appeared on

behalf of Mr. Purshottam Reddy, who had made an

application for intervention in the proceedings and

submitted that the intervenor who was the Director

of the Centre for Environmental Studies, Osmania

University, had challenged the change of alignment

on account of the fact that the integrated

hydrological system which was prevailing in the

area would be destroyed if the Western Sector of

the project was allowed to be completed.

30. We have taken pains to set out the fact

situation in some detail since a decision in this

matter depends on the fact situation leading to the

change of alignment of the Western Sector of the

Outer Ring Road Project in the twin cities of

Hyderabad and Secunderabad in Andhra Pradesh. From

the site plans of the area submitted by the

parties, it is clear that both the two alignments

touch and disturb existing water bodies, which was 26

the main ground for the change of alignment in the

first place. From the reports submitted by the

various local authorities, it is, however, clear

that in order to proceed according to the first

alignment, the respondents would have to cut

through a great deal of rock, which is not so as

far as the second alignment is concerned. It is no

doubt true that in terms of the environmental

policies of the State Government, the Western

Sector of the project has been shown to be a highly

ecologically sensitive zone, but we have no choice

but to consider the viability of either of the two

alignments for the purpose of the connectivity of

the Outer Ring Road and while doing so we have to

balance the aforesaid factor and also the interest

of the private land owners as against the interest

of the public. Apart from the above, we have also

to take into consideration the factors that the

major stretch of the Outer Ring Road is said to

have been completed, even in the Western Sector, 27

and only a small stretch involving the plots of the

appellants, is yet to be completed.

31. There is no doubt that in the facts of this

case the public interest will out-weigh the

interest of the individual plot holders. The only

consideration is with regard to the preservation of

the water bodies which are yet untouched, such as,

plot No. 300 mentioned in the report of the Central

Water Commission and also in the letter written by

the Executive Engineer on 23rd December, 2006. The

arguments advanced on behalf of the appellants have

their positive value but looking at the problem

holistically, we are of the view that their

objections to the use of the lands for the purpose

of the Outer Ring Road have to give way to the

construction of the said road. However, while

constructing the portion of the road affecting the

plots in question, maximum care has to be taken by

the concerned authorities to preserve as far as 28

possible the water bodies over which the road is to

be constructed.

32. The submissions advanced on behalf of the

appellants alleging that adequate opportunity had

not been given to them under Section 5A of the Land

Acquisition Act, 1894, to voice their objections,

is without substance as the objections filed

were duly considered by the Special Deputy

Collector and rejected by his order dated 21st July,

2006.

33. Although, we are not inclined to interfere

with the orders impugned in the three appeals or to

entertain the two writ petitions, we dispose of the

same with a direction to the authorities to take

all possible steps to ensure that the water bodies

in the area are not unduly affected and are

preserved to the maximum extent possible during the

construction of the remaining portion of the Outer

Ring Road on the Western Sector.

29

34. The Interlocutory Applications filed for

intervention are also disposed of by this order.

................................................J. (ALTAMAS KABIR)

................................................J. (CYRIAC JOSEPH) New Delhi Dated:05.04.2010