WP/6195/2013 of M/s. U.Pattabhiramaiah, Vs The State of Andhra Pradesh, on 31 December 2015

ORDER:

The present writ petition is seventh writ petition in the series of writpetitions filed by the petitioners from time to time commencing withWP.No.512 of 2007; WP.No.2198 of 2012; WP.No.5832 of 2012;WP.No.9306 of 2012; WP.No.28592 of 2012 and WA.No.852 of 2011.

2. All the aforesaid writ petitions and writ appeal relate to acquisition ofthe land of the petitioners in pursuance of the notification issued underSection 4(1) of the Land Acquisition Act (for short ‘the Act’) dated 14.12.2005 for the purpose of Outer Ring Road(ORR) Project. The land of the petitioners, in question, is admeasuring Ac.8.00 guntas under Sy.No.567 of Ghatkesar Village andMandal, Ranga Reddy District. Petitioners are stated to have constructedthree blocks of six godowns each admeasuring 15,000 square feet for FoodCorporation of India as per their specifications in the year 1978. Petitionersalso constructed guard rooms, outhouses in the above land and they arestated to have recently renovated and at present, they are leased to A.P.State Civil Supplies Corporation and A.P. State Beverages CorporationLimited. Aggrieved by the notification issued under Section 4(1) of the Actdated 14.12.2005, petitioners filed objections and on the ground that theobjections are not being considered and subsequently, Section 6 declarationbeing published on 18.12.2006, they approached this Court by WP.No.512 of2007, which was dismissed on 27.09.2011. Aggrieved thereby, petitionerspreferred an appeal WA.No.852 of 2011, however, there is no interim ordersubsisting. It is also stated that subsequently an award was also passed on03.12.2011 and notice under Section 12(2) was given to the petitioners on07.01.2012. Questioning the said award, petitioners filed WP.No.2198 of2012, which was disposed of on 30.01.2012 upholding the award. Theoperative portion of the order is as follows:

“In the instant case, the petitioners obtained stay from this Court on05.01.2007 and the writ petition was dismissed on 27.09.2011. It maybe true that the stay was only as regards dispossession. However,once the respondents are prohibited from dispossessing thepetitioners, the question of their proceeding with the passing of awarddoes not arise.

If the period during which the stay was operating is excluded, theaward is passed within the stipulated time. No exception can betaken to the award, much less, the entire proceedings.

Learned counsel for the petitioners submits that there exists a smalltemple in the acquired land and that it will take sometime for thepetitioners to relocate it after performing necessary rituals. When theGovernment and its agencies are expressing total helplessness inshifting certain places of worship even when they are in the middle ofthe roads, the offer made by the petitioners can be readily accepted.The petitioners are granted four weeks time to relocate the existingtemple.

Another contention advanced by the learned counsel for thepetitioners is that in the event of the design of the junction atGhatkesar being changed, the godown constructed by the petitionersmay be spared. It shall be open to the petitioners to make arepresentation in this regard. In case design is changed and thegodowns are not affected, the petitioners shall be entitled to retainthe ownership and possession of the same and the same shall standexcluded from the purview of acquisition.”

3. Petitioners, thereafter, filed another WP.No.5853 of 2012 alleging thatthough the representations of the petitioners,

in pursuance of the order in WP.No.2198 of 2012 (extracted above, arepending, the respondents are proceeding to demolish the godowns. That writ petition was disposed of on 06.03.2012 with the following directions:

“The award, no doubt, was passed in respect of the land and thereby,the land vested in respondent No.3. However, if there is anypossibility to change the alignment, it should not be difficult for him toconsider it and in such an event, the land which is found notnecessary for them, can be excluded from acquisition. Therepresentation which the petitioners made in view of the observationmade by this Court in W.P.No.2198 of 2012 is pending. That wouldbecome infructuous if the godowns are demolished even while it isunder consideration.

Hence, the writ petition is disposed of, directing that respondentNos.2 and 3 shall not demolish the structures over the land acquiredfrom the petitioners till the representation made by them for changeof alignment is considered and orders are passed thereon. Thereshall be no order as to costs.”

4. Petitioners state that they made a representation dated 25.02.2012 tothe Principal Secretary, Municipal Administration stating that out of twotrumpets, one trumpet is overlapping the godowns on the northern side andhence, the well of the trumpet, if shifted by 40 meters adjacent to the western side, which is vacant acquired land, thegodowns will be saved or alternatively by re-orienting the trumpets by 90degrees the godowns can be saved. Petitioners relied upon the modificationeffected to Ghatkesar junction on eastern side where the structures and landof M/s. Dano Vaccines and Biologicals (P) Limited were saved except forAc.0.13 guntas for widening of road.

Petitioners also relied upon another instance of M/s. Sandvik Smith Asia atPatancheru Junction, which was also similarly accommodated to avoidaffecting existing industrial structure and requested to adopt Patancherujunction interchange. Instance at Shamirpet junction is also relied uponwhere the design is stated to have been changed thrice. Petitioners submitthat earlier they gave three different proposals and another five alternateproposals in order to save the godowns without affecting the basic design ofthe junction. The said proposals are stated to have been examined by thesame consultants as that of the second respondent and are stated to havebeen declared as viable and feasible, as per the design criteria adopted forinterchange, however, they are stated to have involved additional cost ofRs.50 Lakhs.

5. While the representations of the petitioners were continued to berejected from time to time, they approached this Court and as per thedirections herein, the matter was remitted back for reconsideration, as pervarious orders, details of which are avoided herein for the sake of brevity.Suffice it to state that the present proposal of the petitioner, which is rejectedunder the impugned proceedings of the second respondent, wasreconsidered as per the interim directions of this Court in WP.No.2198 of2012 dated 30.01.2012 and WP.No.9306 of 2012 dated 03.04.2012.

Several representations of the petitioners dated 18.01.2012, 25.02.2012,09.03.2012, 14.03.2012, 17.03.2012 and 21.03.2012 were, therefore, underconsideration under the impugned order and it is stated that all thoserepresentations have been duly considered including alternate design andparticularly proposal No.4 given by the petitioners, have been rejected underthe impugned proceedings of the second respondent. The same having beenquestioned in this writ petition, this Court directed status quo existing withregard to demolition of structures to be maintained by order dated07.02.2014, which is continuing to operate.

6. Mr. K.G. Krishna Murthy, learned senior counsel for the petitioners,has highlighted the ground of discrimination, alleged by the petitioners, bystating that similar proposals to save valuable properties at Shamirpet,Patancheru, Eastern side of Ghatkesar, Dundigal, Narsingi having beenconsidered by the respondents, there is no reason why the proposal of the petitioners are given a differenttreatment so as to save the godowns by effecting marginal modification tothe proposed interchange. Learned senior counsel also submitted on thebasis of the representations of the petitioners, already filed, that additionalcost of about Rs.50 Lakhs or more, which is likely to be incurred for affecting changes, as per the report of DPRConsultants, is also offered to be borne by the petitioners and submits thatthere cannot be any reason for not considering the proposal of the petitionersso as to advance the ORR project as well to save the properties of thepetitioners. Learned senior counsel placed a lot of stress on the report of theDPR Consultants accepting proposal No.4 of the petitioners. Learned seniorcounsel submits that the accommodation shown at various other places viz.Patancheru, Shamirpet, Dundigal, Narsingi were also cases of similaracquisition of 2005 and proposals were considered in 2007 to save theproperties.

7. Learned senior counsel relied upon relevant pages of the paper book insupport of each of the junctions, referred to above and also pointed out thetechnical consultants reports including that of JNTU, Hyderabad and submitsthat the impugned rejection is clearly arbitrary. Learned senior counsel alsosubmits that Article 14 of the Constitution of India is clearly violated and thereis no objective consideration of the proposals of the petitioners, particularly,after the opinion of the DPR Consultants finding proposal No.4 feasible. Learned senior counsel also states that to obviate any further objection inaccepting the proposal No.4, petitioners have already offered to bear theadditional cost likely to be incurred and also does not seek any access onthe National Highway so far as his godowns are concerned and submits thatthere no reasons why the proposal of the petitioners are rejected under theimpugned proceedings.

Learned senior counsel placed strong reliance upon the decisions of the[1]Supreme Court in RADHY SHYAM v. STATE OF U.P.; ONKAR LALBAJAJ v. UNION OF INDIA[[2]];GOVERNMENT OF ANDHRA[3]PRADESH, SCHOOL EDUCATION DEPT. v. K. HANMI REDDYand[4]BLUEPARK SEAFOODS (P) LTD. v. DISTRCIT COLLECTOR.

8. Per contra, Mr. E. Madan Mohan Rao, learned counsel appearing forthe second respondent has relied the counter affidavit and additional counteraffidavit of the second respondent, which is, briefly, referred to hereunder.

9. Counter affidavit states that ORR Project work commenced on26.05.2010 and schedule for completion was within 30 months i.e. by 30.11.2012. However, the vehicle underpass (VUP) work in theGhatkesar junction is affected/delayed due to petitioners.

It is submitted that originally the DPR consultants proposed partial clover leafinterchange. The Government, subsequently, gave approval on 06.03.2009and the design was modified to double trumpet interchange and that even in the earlier design, a partial clover leaf interchange would have affected thestructures of the petitioners and the modified double trumpet interchangeplan within the land notified for acquisition without involving any additionalland acquisition keeping in view the advantages of the interchange designand for effective utilization of interchange land for accommodating waysideamenities and track related facilities within the notified land. It is asserted thatthere is no change in the alignment of ORR in the land of the petitionersexcept for the change in the design from partial clover leaf to double trumpetinterchange. It is also denied that the proposal of the petitioners wasapproved by DPR consultants and it is stated that as per DPR Consultants,all alternative designs require compromise in different aspects.

10. To the extent of proposal No.4, it is stated that the proposal wouldinvolve shifting the loop to the West side by utilizing the available landbetween the service road and the loop by supporting ramp from the loop. Itwas, further, observed that ramp length would be considerably increased by125 meters along with an additional re-wall quantity by about 240 sq. meters. The implication of this proposal willbe approximately Rs.50 lakhs and the access to the petitioners’ godown toNational Highway was not advisable keeping in view the safety considerationon high capacity interchange area. It is also stated that separate ramp fromloop is not allowed in any of the interchanges on the ORR. It is also statedthat the offer of the petitioners not to seek access from the national highwayand instead connect the godowns by providing access roads from southwest quadrant is also technically not feasible for reasons 1 to 3 mentioned inpara 10 of the counter. It is also stated that the land of the petitioners’ to theextent of Ac.8.16 guntas is already acquired and compensation is paid andthe entire Ac.16.18 guntas was already acquired for notification in the samesurvey number in 2005 itself.

11. It is also stated that with reference to various representations of thepetitioners addressed to the Principal Secretary with request to change the design of interchange was rejected by the Government and wascommunicated to the petitioners as early as on 15.05.2012.

The allegation of the petitioners with regard to saving of structures of M/s.Dano Vaccines is also stated to be incorrect as their structures were neveraffected within the right of way planned for interchange development. Whilethe counter affidavit denies the technical feasibility of the proposal of thepetitioners, it is stated that the Government has once again considered therequest of the petitioners to include the godowns and structures vide memoof the Government dated 11.01.2013.

12. To the extent of allegation of the petitioners regarding Patancheru,Shamirpet, Narsingi junctions, the counter affidavit states that the designinterchange at Shamirpet is changed thrice is not correct and originally rotarydesign is modified to double trumpet interchange. It is stated that Narsingiinterchange is a T junction where link road to Gachibowli is meeting ORRfrom Shamshabad to Patancheru and only solution is single trumpetinterchange.

Hence, the allegation of the petitioners in that respect is also denied. Thecounter affidavit also states that after passing of the award dated 03.12.2011,the possession of the affected land is taken over and handed over to theexecuting agency on 19.12.2011 and further delay in completion of theproject would lead to cost escalation as it is already delayed and asextended its notified completion date.

To the extent of allegation made regarding M/s. Sandvik Smith Asia, it is stated that their request to provide access to the service road and not tothe national highway was considered without any change of design and thesame was feasible at Patancheru junction, as the radius and length of theloop ramps was large.

13. The counter affidavit discusses the demerits of different proposals ofthe petitioners. Mr. E. Madan Mohan Rao, learned counsel, elaborated the counter affidavit, referred to above and has placed reliance upon a decision of the Supreme Court in JAL MAHAL RESORTS PRIVATE LIMITED v. K.P. SHARMA[[5]].Learned counsel submits that as many as nine proposals of the petitioners wereconsidered even by the DPR Consultants and their report is not entirely infavour of the petitioners, but erroneously understood by the petitioners as it isin their favour. Lastly, learned counsel would submit that the challenge to theacquisition by the petitioners having been negatived, the award having beenpassed and the possession taken long back, petitioners cannot insist byrepeated proposals to seek modification of the design of interchange.14. Keeping in view the rival contentions, therefore, the issue that requiresdetermination is as to whether the impugned rejection of the proposal of thepetitioners is arbitrary and discriminatory, as alleged.

15. Before considering the aforesaid issue, the essential facts noted aboveclearly show that the land of the petitioners was notified for acquisition asearly as in 2005 and after the acquisition notification was upheld by this Courtin WP.No.512 of 2007 dated 27.09.2011,

the award was also passed on 03.12.2011 and possession of the land wastaken on 19.12.2011 and was handed over to the executing agency. Nodoubt, the petitioners preferred WA.No.852 of 2011 against the order inWP.No.512 of 2007 but there is no interim order passed therein. In law,therefore, the subject land vests absolutely with the State Government andeven assuming that the design of interchange is modified to the exclusion ofaffected godowns of the petitioners, it is beyond the purview of law for theGovernment to resile from the acquisition as Section 48 of the Act will not beavailable any more so as to withdraw the acquisition of the petitionersaffected godowns. Since the acquisition of the said property cannot bewithdrawn, in law, I am unable to see any purpose being served byconsideration of the numerous representations of the petitioners from time totime for modification of the design of interchange.

16. Secondly, the alignment or the design of the interchange having beenapproved by experts, such as, DPR Consultants and approved by theGovernment, is presumed to have been approved keeping in view all theparameters including the minimum extent of land being affected, as is set outin the counter affidavit of the second respondent i.e. original single trumpetdesign is changed and approved by the Government to double trumpetdesign. Hence, the said design, as approved, keeping in view the technical parameters, to my mind, cannotbe modified in the manner sought for by the petitioners, particularly, as theland affected having already been acquired. In this background, the issue posed is required to be examined.

17. Learned senior counsel for the petitioners placed strong reliance uponthe decision of the Supreme Court in RADHY SHYAM’s case (1 supra), para 86 thereof is relied upon, which is extracted hereunder:

“86. We also find merit in the appellants' plea that the acquisition oftheir land is vitiated due to violation of the doctrine of equalityenshrined in Article 14of the Constitution. A reading of the surveyreport shows that the committee constituted by the StateGovernment had recommended release of land measuring 18.9725hectares. Many parcels of land were released from acquisitionbecause the land owners had already raised constructions and wereusing the same as dwelling units. A large chunk of land measuring4.3840 hectares was not acquired apparently because the samebelong to an ex-member of the legislative assembly. The appellantshad also raised constructions on their land and were using the samefor residential and agricultural purposes. Why their land was not leftout from acquisition has not been explained in the counter affidavitfiled by the respondents. The High Court should have treated this assufficient for recording a finding that the respondents had adopted thepolicy of pick and choose in acquiring some parcels of land and thisamounted to violation of Article 14of the Constitution. Indeed it hasnot been pleaded by the respondents that the appellants cannotinvoke the doctrine of equality because the other parcels of land wereillegally left out from acquisition.”their land is vitiated due to violation of the doctrine of equalityenshrined in Article 14of the Constitution. A reading of the surveyreport shows that the committee constituted by the StateGovernment had recommended release of land measuring 18.9725hectares. Many parcels of land were released from acquisitionbecause the land owners had already raised constructions and wereusing the same as dwelling units. A large chunk of land measuring4.3840 hectares was not acquired apparently because the samebelong to an ex-member of the legislative assembly. The appellantshad also raised constructions on their land and were using the samefor residential and agricultural purposes. Why their land was not leftout from acquisition has not been explained in the counter affidavitfiled by the respondents. The High Court should have treated this assufficient for recording a finding that the respondents had adopted thepolicy of pick and choose in acquiring some parcels of land and thisamounted to violation of Article 14of the Constitution. Indeed it hasnot been pleaded by the respondents that the appellants cannotinvoke the doctrine of equality because the other parcels of land wereillegally left out from acquisition.”

18. The aforesaid was, however, a case where the policy of pick andchoose was disapproved by the Supreme Court. Applying such criteriamajor chunk of land was excluded from acquisition but same criteria was not applied to petitioners land also falling in the same category and liable forexclusion on the same parameters. In that context, the Supreme Court invoked the doctrine of equality. I am unable to see anyrelevance of that case to the facts of the present case.

19. Counter affidavit of the second respondent, referred to above, deniedthe allegation of discrimination so far as Patancheru, Narsingi, Shamirpetjunctions are concerned and stated that in each of those other junctions, thefactual situation was entirely different from the present junction on hand atGhatkesar. Even the allegation of the petitioner to the extent of Eastern sidejunction at Ghatkesar was demonstrated as incorrect in the counter affidavit.I see no reason to reject the said averments in the counter affidavit as thesecond respondent has sufficiently explained the distinguishing features ofthe other junctions’ vis-à-vis the junction, in question.

20. Learned senior counsel relied upon another decision of the SupremeCourt in ONKAR LAL BAJAJ’s case (2 supra). The said case relatedcancellation of allotment in respect of retail outlet for marketing of petroleumproducts where the Supreme Court interfered on finding that the exercise ofpower was arbitrary and without application of mind, as all categories ofallotment were put into category of tainted allotment. In that context, whileexplaining the concept of Article 14 of the Constitution of India, the Supreme Court held in para 27 as follows:

“27. Article 14guarantees to everyone equality before law. Unequalscannot be clubbed. The proposition is well settled and does notrequire reference to any precedent though many decisions were cited.Likewise, an arbitrary exercise of executive power deserves to bequashed is a proposition which again does not require support of anyprecedent. It is equally well settled that an order passed withoutapplication of mind deserves to be annulled being an arbitraryexercise of power. At the same time, we have no difficulty inaccepting the proposition urged on behalf of the Government that iftwo views are possible and the Government takes one of it, it wouldnot be amenable to judicial review on the ground that other view,according to the Court, is a better view.”

I do not think that the said decision also has any bearing so far as thefacts of the present case are concerned, as the principle therein is notattracted in the facts of the present case.

21. Learned senior counsel also relied upon a decision of this Court in K.HANMI REDDY’s case (3 supra), which was a case where the proposal forregularization of teachers for grant-in-aid post in the Education Departmentwas the issue for consideration. I am unable to see any relevance of thatcase for the purpose of decision in the present case and reliance placed onpart of para 100 of the decision, as extracted below, is clearly out of context:

“100. … When a Court, after hearing both the parties, passes anorder on the merits of the case and gives a direction to consider thecase, the word ‘consider’ would not and should not be understood togive an authority to the officials to pass an order on the same pointsraised in the writ petition as if an appellate authority. The word‘consider’ means, for all practical purposes, to implement the ordersin its letter and spirit.”

Learned senior counsel would, therefore, contend that when this Courtdirected the second respondent to consider the proposal of the petitioners,the same could not have been rejected. I find the said proposition totallyunacceptable, as a direction to consider can never mean a direction toconsider favourably alone.

22. A Division Bench judgment of this Court, to which I am a party, inBLUEPARK SEAFOODS (P) LTD.’s case (4 supra) is also relied upon bythe learned senior counsel for the petitioners. However, that case also dealtwith a different fact situation and interpreting Section 3(C)(1) of the NationalHighways Act, it was held that under Section 3(C) of the National HighwaysAct, that a limited right to object the proposed national highway is permissiblebut that does not give right to object to acquisition as such. Thoughpetitioners, in the present case, may be justified in making every possibleattempt to save his godowns from acquisition, in my view, unless the petitioners succeed in the writ appeal, referred to above, the entire exercisefor modification of the design of the interchange would be futile.

23. At this stage, it is also necessary to refer to the decision relied upon bythe learned counsel for the second respondent in JAL MAHAL RESORTSPRIVATE LIMITED’s case (5 supra). In that case, the Supreme Court considered the scope of judicial review with regard topolicy decisions or policy matters, especially, those based on the opinion of experts. Para 140 thereof is relevant, which is extracted hereunder:

“140. At this juncture, we take note of two overriding considerationswhich combined, narrow the scope of review. The first is that ofdeference to the views of administrative experts and the other wetake assistance from the words of Chief Justice Neely whoexpressed as follows:

“I have very few illusions about my own limitations as a judgeand from those limitations I generalise to the inherentlimitations of all appellate courts reviewing rare cases.”

The learned Chief Justice further observed as follows:

“I am not an accountant, electrical engineer, financier, banker,stock broker, or systems management analyst.

It is the height of folly to expect judges intelligently to review a5000 page record addressing the intricacies of public utilityoperation.

It is not the function of a judge to act as a super board, orwith the zeal of a pedantic schoolmaster substituting itsjudgment for that of the administrator. The result is a theory ofreview that limits the extent to which the discretion of theexpert may be scrutinized by the non-expert judge. It wassuggested that the alternative for the court is to desist itselffrom interference on technical matters, where all theadvantages of expertise lie with the agencies. If the court wereto review fully the decision of an expert body such as StateBoard of Medical Examiners, ‘it would find itself wanderingamid the maze of therapeutics or boggling at the mysteries ofthe pharmacopoeia’.”

24. Keeping in view the various factual aspects, as discussed above andthe legal position obtained, I am unable to persuade myself to accept thecontentions of the learned senior counsel for the petitioners that theimpugned rejection of the proposal of the petitioners by the second respondent was in any manner arbitrary or discriminatory and on thecontrary, the impugned proceedings itself shows the application of mindwhere relevant parameters are taken into consideration in arriving at thedecision. Hence, no interference with the impugned proceedings is called for.

The issue is answered accordingly.

The writ petition is accordingly dismissed. As a sequel, the miscellaneous applications, if any, shall stand closed. There shall be noorder as to costs.

December 31, 2015DSK

______________________VILAS V. AFZULPURKAR, J

[1](2011) 5 SCC 553

[2](2003) 2 SCC 673

[3]2015 (4) ALT 318

[4]2011 (4) ALD 494 (DB)

[5](2014) 8 SCC 804