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2012 DIGILAW 377 (AP)

R. Pushpavathi v. Special Deputy Collector

2012-04-02

L.NARASIMHA REDDY

body2012
JUDGMENT 1. The petitioners are the owners of the premises abutting the road from Ameerpet to Sanjeeva Reddy Nagar in Hyderabad. It is stand that when the properties were purchased by them, a strip of 30 feet abutting the then existing road was left for the purpose of widening. It is also stated that in the year 1977, when permission to construct the building was accorded, they had to leave 20 feet further, and that in all, a strip of 55 feet width is left on their side. The Assistant City planner, the 5th respondent, issued a notice, dated 31.3.2006, informing the petitioners that further extents are needed from their properties for the purpose of widening the road. WP No.21954 of 2006 was filed by the 1st petitioner, challenging the said notice. The writ petition was disposed of on 26.10.2006, leaving it open to the petitioner therein to ventilate his grievance by submitting the representation. 2. Thereafter, the petitioners received notices dated 10.1.2008, under Sections 9 and 10 of the Land Acquisition Act (for short ‘the Act’) issued by the 1st respondent. Reeling under the impression that such notices are not preceded by notifications under Sections 4(1) and 6 of the Act, they filed this writ petition challenging the notices. After the writ petition was filed, the petitioners came to know that the notification under Section 4(1) of the Act was published on 6.1.2008 and that declaration under Section 6 was also published. They got amended the prayer in the writ petition by filing WPMP No.42213 of 2011, to bring the notification published under Section 4(1) of the Act, in the fold of the writ petition. 3. The petitioners contend that the notification issued under Section 4(1) of the Act is without jurisdiction, since it was issued by the District Collector, and not by the Government. It is pleaded that the Government in the Revenue Department issued G.O. Ms.No.1131, dated 17.7.1986, in exercise of power under Section 3-A of the Act, delegating its powers under Sections 4, 5-A, 6 and 17 of the Act to the concerned District Collectors for acquisition of the land for the benefit of the Municipalities in the State and to Urban Development Authorities at Warangal and Hyderabad, and that such powers are not delegated in the context of acquisition of the lands for the benefit of the Municipal Corporation of Hyderabad. They further plead that the respondents acted in a discriminatory manner in choosing to acquire the land only on one side of the road, while leaving the properties on the other side, untouched. Other grounds are also urged. 4. The 1st respondent, i.e. the Land Acquisition Officer filed a counter-affidavit. He states that the acquisition became necessary for widening of the road, in view of heavy traffic. He had furnished the particulars of the publication of draft notification and draft declaration. The allegation as to the discrimination in acquisition is denied. He further pleads that the proceedings do not suffer from any illegality, infirmity or jurisdictional error. 5. Sri M.V.S. Suresh Kumar, learned Counsel for the petitioners submits that the District Collector, the 6th respondent herein is not at all competent to issue notifications under Sections 4(1) and 6 of the Act and the delegation to him under G.O.Ms.No.1131 dated 17.7.1986, was restricted to the acquisition for the benefit of Municipalities and Urban Development Authorities. He submits that it was only in the year 2010, that the Government issued G.O.Ms.No.166, dated 24.2.2010, delegating its power to the Collectors to take steps for acquisition of land for the benefit of Municipal Corporations also. On merits, learned Counsel submits that in case the Corporation wanted to widen the road, it ought to have done so, equally, on both sides, whereas in the instant case acquisition is restored to only on one side. He contends that the petitioners have virtually left a set back of 55 feet for the purpose of widening of the road, and still further extent is notified for acquisition. 6. Learned Government Pleader for Land Acquisition and Dr. Y. Padmavathy, learned Standing Counsel for the Corporation, on the other hand, submit that the notification was validity issued by the 6th respondent. According to them, the purpose of issuing G.O.Ms.No.1131, dated 17.7.1986, was to delegate powers to the District Collectors, enabling them to acquire the properties for the benefit of the local bodies, which include, Municipalities, Municipal Corporations, Urban Development Authorities, etc. They submit that the names of Municipalities and certain Urban Development Authorities were mentioned in G.O.Ms.No.1131, only by way of illustration, and that the notification would cover all the local bodies. They submit that the names of Municipalities and certain Urban Development Authorities were mentioned in G.O.Ms.No.1131, only by way of illustration, and that the notification would cover all the local bodies. According to them, the G.O.Ms.No.166 dated 24.2.2010 was issued as a precaution, and it does not, by itself, bring about any radical change in the existing legal regime. 7. The writ petition was initially filed challenging the notices issued under Sections 9(3) and 10, on the assumption that they were not preceded by notifications under Sections 4(1) and 6 of the Act. On being informed that such notifications were published on 3.1.2008 and 8.1.2008, respectively by dispensing with enquiry under Section 5-A of the Act, the petitioners got amended the prayer in the writ petition, and have challenged the notifications. 8. The Act empowers only the State and Central Governments to issue notifications for acquisition of land and to take other steps. Section 3-A of the Act confers power upon the appropriate Government to delegate its powers to the Collectors, enabling them to acquire properties for the purposes, mentioned in the concerned orders. In the instant case, the notifications under Sections 4(1) and 6 of the Act were issued by the District Collector, Hyderabad. When the petitioners raised the objection as to the competent of the District Collector, to issue notification, the respondents relied upon G.O.Ms.No.1131, dated 17.7.1986, issued by the State of A.P., in exercise of power under Section 3-A of the Act. 9. The notification issued under Section 3-A of the Act is in two parts: through the first part, the State delegated its power under Sections 4, 5-A, 6 and sub-section (4) of Section 17 of the Act to the concerned District Collectors, for acquisition of land “on behalf of all the Municipalities in the State”. Under the second part it delegated its power, under those very provisions, to the District Collectors for acquisition of land on behalf of “Kakatiya Urban Development Authority, Warangal and Quli Qutubsha Urban Development Authority, Hyderabad.” 10. In the instant case, the acquisition is for the benefit of Municipal Corporation of Hyderabad. In either part of the notification, issued under Section 3-A, the Hyderabad Municipal Corporation, figured, be it by name as one in the class or category. In the instant case, the acquisition is for the benefit of Municipal Corporation of Hyderabad. In either part of the notification, issued under Section 3-A, the Hyderabad Municipal Corporation, figured, be it by name as one in the class or category. The result is that G.O.Ms.No.1131 dated 17.7.1986, cannot be a source of power for the 6th respondent to issue the impugned notifications under Sections 4(1) and 6 of the Act, to acquire land for the benefit of the Hyderabad Municipal Corporation. 11. The notification is sought to be sustained by the respondents by referring to the definition of the expression “local authority” under sub-section (30) of Section 2 of the Hyderabad Municipal Authority According to them, the expression ‘local authority’ takes in its fold, all the categories of organizations, such as, municipalities, and Municipal Corporation, Cantonment Boards, that take care of the civic amenities of the citizens, and viewed in that context, the omission to include the name of the Municipal Corporations in the G.O. does not make much of difference. This argument does not deserve to be accepted at all. When the State is clear in its mind, in the context of delegation of its powers, and has specified only Municipalities as a class, and two individual Urban Development Authorities, it is impermissible to bring in its fold, all the local authorities, such as Gram panchayats, Municipalities, Municipal Corporations, Cantonments, etc. 12. The remote possibility of accepting the argument advanced on behalf of the respondents is ruled out with the issuance of G.O.Ms.No.166, dated 24.2.2010. It is through this G.O., that the District Collector was conferred with the power to acquire the lands for the benefit of Greater Hyderabad Municipal Corporation, the upgraded version of the Hyderabad Municipal Corporation. It means that, till the G.O. was issued, the District Collector was not competent to exercise powers to acquire the lands for the benefit of the Corporation. It is not a case where the said G.O., was issued in the light of the upgradation of the Corporation. 13. In the field of interpretation of provisions of law, one of the settled principles is that the fact that powers are conferred upon an authority through an instrument or provision of law, would, by itself, provide a conclusive proof to establish that before such instrument was issued or provision was enacted, the authority was not vested with the power at all. Thus, it becomes clear that the notifications dated 3.1.2008 and 8.1.2008, issued under Sections 4(1) and 6 of the Act respectively, were issued by the 6th respondent without jurisdiction. 14. Another grievance of the petitioners is that the respondents are selective in acquiring the properties in the process of widening of the road. It hardly needs any mention that whenever a road is proposed to be expanded, the properties on both sides of the road must be acquired in equal extents, unless the alignment of the road is modified, in accordance with the procedure prescribed by law. Acquisition of the land only on one side of the road would amount to discrimination, violative of Article 14 of the Constitution of India. 15. Hence, the writ petition is allowed, and the notification dated 3.1.2008, issued under Section 4(1) of the Act and the consequential proceedings are set aside. It is left open to the respondent to issue fresh proceedings, in such a way that the acquisition is equal and equitable on both sides of the road. 16. The miscellaneous petition filed in this writ petition also shall stand disposed of. There shall be no order as to costs.