Andhra Pradesh High Court - Amravati
Kakarlapudi Satyanarayana Raju vs The State Of Andhra Pradesh, on 4 November, 2022
IN THE HIGH COURT OF ANDHRA PRADESH: AMARAVATI
HON'BLE Mr. JUSTICE PRASHANT KUMAR MISHRA, CHIEF JUSTICE
AND
HON'BLE Mr. JUSTICE D.V.S.S. SOMAYAJULU
W.P.Nos.32956, 33034 of 2015; W.P.No.8639 of 2016
and W.A.No.852 of 2016
COMMON ORDER:
Dt.04.11.2022
(Per Prashant Kumar Mishra, CJ)
As these writ petitions and writ appeal involve common
issues, they are heard analogously and being disposed of by
this common order.
2. W.A.No.852 of 2016 arises out of the interim order
dated 25.01.2016 passed by the learned single Judge in
W.P.M.P.No.42434 of 2015 in W.P.No.32879 of 2015. Other
connected writ appeals are disposed of by separate common
judgment dated 09.11.2021. However, W.A.No.852 of 2016
was kept pending because the material papers necessary to
be referred in the course of hearing are available in this writ
appeal.
3. W.P.No.32956 of 2015 and W.P.No.8639 of 2016
challenge acquisition of petitioners' land by Preliminary
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W.P.Nos.32956, 33034 of 2015;
-2- W.P.No.8639 of 2016 &
W.A.No.852 of 2016
Notification No.2315/2015/G3, dated 31.08.2015, issued by
the 2nd respondent, District Collector, Vizianagaram District,
by declaring the same as illegal, arbitrary, void ab initio in
view of lapse of lapse of Ordinance No.5 of 2015, with a
further prayer to suspend the Notification during pendency of
the writ petitions. Similar prayer for quashing of Preliminary
Notification No.2314/2015/G3, dated 31.08.2015, was initially
made in W.P.No.33034 of 2015. However, by amending the
prayer clause, petitioners have questioned the constitutional
validity of A.P. Amendment Act (Act No.22 of 2018), i.e. the
Right to Fair Compensation and Transparency in Land
Acquisition, Rehabilitation and Resettlement (Andhra Pradesh
Amendment) Act, 2018.
4. A batch of writ petitions was filed challenging the
subject land acquisition notifications. However, in all the
cases except the present three writ petitions, the matter was
settled amicably between the parties and the affected
petitioners have received the compensation, rendering the
writ petitions infructuous, as has been recorded by this Court
in the docket order dated 03.09.2021.
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W.P.Nos.32956, 33034 of 2015;
-3- W.P.No.8639 of 2016 &
W.A.No.852 of 2016
5. Challenge in all these matters is to the notification to
acquire land for establishment of an airport at Bhogapuram,
Vizianagaram District. The Government of India with a view
to upgrade and modernise the airport infrastructure,
promulgated the Policy on Airport Infrastructure 1997 with
the objective of development of airport infrastructure by
encouraging private sector involvement. In furtherance of the
policy, the Government of Andhra Pradesh proposed to
establish a greenfield international airport near
Visakhapatnam city since the existing airport in
Visakhapatnam is a Defence Airport under the control of the
Ministry of Defence, Government of India, experiencing
operational constraints and lack of scope for its expansion to
meet the requirements of an international airport standards.
For this purpose, respondent No.7, i.e. Andhra Pradesh
Airports Development Corporation Limited, was constituted.
The State Government also engaged M/s. RITES Ltd., a Govt.
of India enterprise, to study the technical feasibility, suitability
of land and preparation of plan, which, in turn, submitted
report finding Bhogapuram as the most appropriate place for
establishment of a greenfield international airport. To
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W.A.No.852 of 2016
facilitate construction of airport, the State of Andhra Pradesh
decided to acquire about 5311 acres of land by issuing Memo
No.512/Airports/A/2015, dated 31.08.2015, instructing the
District Collector to notify the land for acquisition.
6. The Government of India issued Ordinance No.5 of 2015
proposing certain amendments to the Right to Fair
Compensation and Transparency in Land Acquisition,
Rehabilitation & Resettlement Act, 2013 ("the LA Act, 2013",
for brevity). As per the said Ordinance, Section 10 of the LA
Act, 2013 was amended by introducing Section 10A and
brought into force with retrospective effect from 01.01.2014.
The Ordinance was valid till 31.08.2015. The District
Collector issued Rc.No.30/20212/G3 dated 31.08.2015
exempting Chapter II & III of the LA Act, 2013 and published
the same in the District Gazette No.298/2015/A8 on
31.08.2015 and, thereafter, issued land acquisition
notification, which is sought to be challenged in these
petitions. Although the initial proposal was for acquisition of
about 5311.88 acres of land, land requirement was
subsequently reduced to an extent of 2004.54 acres only for
phase 1 of the development of airport and airport related
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activities besides 119 acres for approach roads. Initially,
large number of landowners falling within the alignment of the
proposed airport challenged the acquisition proceedings.
However, majority of the petitioners voluntarily consented to
the acquisition by receiving the compensation and
withdrawing writ petitions. As per the stand of respondent
No.7-Corporation, barring about 37 acres belonging to writ
petitioners 11 and 13 of W.P.No.33034 of 2015, entire extent
of land falling within the alignment of the said airport project
has already been acquired and the landowners have accepted
the amount of compensation and submitted consent affidavit
for withdrawal of writ petitions. Thus, out of total land
required for the project, only 37 acres of land is in present
litigation and the rest of the lands are in possession of
respondent No.7 free from all encumbrances.
7. According to the petitioners, the LA Act, 2013 is a
complete departure from the procedure provided under the
Land Acquisition Act, 1894. In the new Act, there are
safeguards available to the land-losers as a matter of right,
which includes under Chapter II "Determination of social
impact and public purpose - Preliminary investigation for
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determination of social impact and public purpose" and under
chapter III "Provision to safeguard food security" by
prohibiting acquisition of agricultural land. The Act also
provides for rehabilitation as well as resettlement of the land-
losers in an adequate form by providing benefits under the
Act. Ordinance No.9 of 2014 came into effect from
31.12.2014, by which amendment was made to the Principal
Act by inserting Section 10A, under which the appropriate
Government was empowered to issue notification exempting
the provisions of Chapter II and Chapter III for the projects
referred therein. The Project includes "projects vital to
national security defence of India; rural infrastructure
including electrification; affordable housing and housing for
the poor people; industrial corridors; and infrastructure and
social infrastructure projects". Thus, the social impact study
provided under Chapter II and protection of food security
provided under Chapter III can be exempted by the
appropriate Government by issuing notification in the public
interest and the State can straightaway initiate acquisition
process under Section 11 of the LA Act, 2013. The President
of India again promulgated another Ordinance, i.e. Ordinance
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No.4 of 2015, making further amendments to the Principal
Act, including amendment to Section 10A of the LA Act, 2013
further expanding the scope of Section 10A for the purpose of
exemption under Chapter II and Chapter III of the Principal
Act. This Ordinance saved the actions taken under the
Principal Act as amended by Ordinance No.9 of 2014. The
President of India issued third Ordinance, i.e. Ordinance No.5
of 2015 by reproducing the contents of Ordinance No.4 of
2014, with effect from 01.12.2014. This Ordinance also saved
the actions taken under Ordinance No.4 of 2015. Ordinance
No.5 of 2015 remained in operation till 31.08.2015, when it
was allowed to be lapsed.
8. Mr. A. Satya Prasad, learned senior counsel for the
petitioners argued that under Section 5 of Ordinance No.9 of
2014, the Union of India exempted application of Chapter II
and Chapter III to four categories of projects subject to
ensuring bare minimum extent of land for the project. The
ownership of land acquired continues to remain with the
Government and the said position continued by issuing
another Ordinance No.4 of 2015 dated 03.04.2015 with
retrospective effect from 31.12.2014 and yet again by issuing
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W.A.No.852 of 2016
Ordinance No.5 of 2015 on 30.05.2015 with retrospective
operation with effect from 31.12.2014. It is contended that
respondent No.2 published Preliminary Notification
No.2314/2015/G3 dated 31.08.2015 in Sakshi and Eenadu
daily newspapers under Section 11(1) the LA Act, 2013 read
with Section 19(1) of the Andhra Pradesh Right to Fair
Compensation and Transparency in Land Acquisition,
Rehabilitation and Resettlement Rules 2014 ("the Rules,
2014", for brevity) proposing to acquire the land in villages of
Gudepuvalasa, Kancheru, Amatam Ravivalasa,
Kongavanipalem, Munjeru, Savaravalli, Kancherupalem,
Kavulavada and Ravada villages of Bhogapuram Mandal for
establishing a Green Field Airport and invited objections under
Section 15 of the LA Act, 2013. The respondent No.2, on
29.01.2015, under Section 10A, inserted by Ordinance 9 of
2014, exempted the four projects from application of Chapter
II and Chapter III. On 20.05.2015, respondent No.1 issued
G.O.Ms.No.63 (Infrastructure & Investment Department)
dated 20.05.2015, to establish an SPV "M/s. Bhogapuram
International Airport Company Ltd., a 100% government
owned company with an option to transfer majority share to
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successful bidder of the project. Respondent No.2 also issued
Notification No.30/2012/G3 dated 31.08.2015 published in
District Gazette exempting application of Chapter II and
Chapter III of LA Act, 2013 and further published Preliminary
Notifications on the same day, i.e. 31.08.2015.
9. Based on the above background events involving
amendment of the LA Act, 2013 and issuance of land
acquisition notifications, it is vehemently argued by the
learned senior counsel that petitioners cannot be deprived of
their property without authority of law; the respondents did
not comply with the provisions of the LA Act, 2013 and, more
particularly, failed to obtain 'prior consent'; respondents failed
to conduct social impact assessment study and food security
issues under Section 2(2) of the first proviso, Section 3(e),
Section 3(v), Chapter II and Chapter III. Respondent No.2 is
bound to issue notification in terms of Section 3(v) and as
'appropriate government' in terms of Section 3(e) of the LA
Act, 2013 and cannot exempt or ignore the same.
10. It is also argued that the impugned notifications
exempted application of Chapter II and Chapter III based on
Ordinance No.9 of 2014, Ordinance No.4 of 2015 and
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W.A.No.852 of 2016
Ordinance No.5 of 2015, which are void ab initio as the said
Ordinances lapsed without saving the actions. He refers to
Article 123 of the Constitution of India and argues that
Ordinance No.5 of 2015 contained saving clause saving acts
done under Ordinance No.4 of 2015, but did not contain any
saving clause to save acts committed under Ordinance No.5 of
2015; thus, the impugned notifications are not saved and
they are illegal, as the same have been issued without
compliance of Chapter II and Chapter III of the LA Act, 2013.
It is argued that once Ordinance No.5 of 2015 stands lapsed,
entire action taken under any of the above-referred
Ordinances stood lapsed due to absence of saving clause
under Ordinance No.5 of 2015. Referring to the decision in
D.C. Wadhwa v. State of Bihar, reported in (1987) 1 SCC
378 and Krishna Kumar Singh v. State of Bihar & others,
reported in 2017 SCC OnLine SC 10, it is put forth that re-
promulgation of Ordinances is fraud on the Constitution and is
subversion of democratic legislative process.
11. It is further argued that State's submission that consent
awards have been passed qua 2064 acres belonging to 1937
owners, paying compensation amount of Rs.678 crore,
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W.A.No.852 of 2016
is ill-founded, as the same has been criticized by the
composite High Court in W.P.No.23148 of 2018 on the ground
that there is unequal bargaining power between the
landholders and the State.
12. Learned senior counsel next argues that under first
proviso to Section 2(2), a condition is imposed that in all
cases of public private partnership projects, prior consent of
at least 70% of the affected families and also the Gram
Sabhas is mandatory and the same has to be obtained before
issue of Preliminary Notification as required under Rule 19 of
the Rules, 2014; therefore, since admittedly prior consent is
not obtained in the present cases, the impugned notifications
are vitiated.
13. It is also argued that by virtue of Section 2(a) and
Section 10A of the LA Act, 2013, in all cases of land
acquisition for public private partnership, the ownership of the
land acquired should vest continuously with the Government
and the same is also prescribed as mandatory pre-condition to
avail exemption under Chapter II & Chapter III. However,
both the provisions have been violated invalidating the
notifications exempting Chapter II and Chapter III under
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W.P.Nos.32956, 33034 of 2015;
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Section 10A as well as the Preliminary Notifications dated
31.08.2015. Buttressing the submission further, it is stated
that the acquired land has been given to the SPV whose
control ultimately is with a private company under public
private partnership (PPP) mode resulting in absolute control
and trappings of ownership of the land not retained by the
Government. Thus, even the exemption from application of
Chapter II and Chapter III of LA Act, 2013 has not been
availed in accordance with law; hence, requiring compliance
of social impact assessment study and food security issues as
mandatory.
14. It is next argued that the pre-condition of ensuring bare
minimum extent of land required for the project has not been
complied with to avail exemption inserted under Section 10A.
It is further argued that publication of notifications in the
Gazette of the State is mandatory. However, in the present
case, Preliminary Notification has been issued in the District
Gazette, which is illegal being not in conformity with law.
Learned senior counsel refers to the law laid down by the High
Court of Madras in A.S. Periasamy v. State of Tamilnadu,
reported in 2003 SCC Online Mad 634 and Tamilnadu
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-13- W.P.No.8639 of 2016 &
W.A.No.852 of 2016
Housing Board v. DPF Textiles reported in
Manu/TN/4695/2017. He would also refer to the decisions
of the Hon'ble Supreme Court in K. Dayanandalal & others
v. State of Kerala, reported in (1996) 9 SCC 728 and ITC
Badrachalam Paper Boards v. M.R.O., reported in (1996)
6 SCC 634.
15. It is also argued that the District Collector has no
authority to issue Preliminary Notification and other
Notifications under Section 11 and Section 10A of the LA Act,
2013. According to the learned senior counsel, the
appropriate Government to issue such notification is the State
Government, because there is no delegation of that power to
the District Collector, as required under Section 3(e) of the LA
Act, 2013. He would further argue that until a separate
notification is issued prescribing limit, i.e. maximum extent of
land for which the District Collector could issue notification, a
general rule would not enable the District Collector to issue
the Preliminary Notifications. Thus, the impugned
notifications are without jurisdiction.
16. It is also argued by him that identification and
segregation of land for the purpose of the present land
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W.A.No.852 of 2016
acquisition is arbitrary and violative of Article 14 of the
Constitution of India, inasmuch as the land belonging to
politicians and influential persons has been excluded and land
of the petitioners and other poor landowners has been
subjected to acquisition.
17. Challenging the validity of A.P. Amendment Act (Act
No.22 of 2018) as being unconstitutional for violating Article
254(2) of the Constitution of India, it is argued by the learned
senior counsel that the A.P. Amendment Act inserts the same
text, content, pith and substance of Ordinance No.9 of 2014,
Ordinance Nos.4 and 5 of 2015. Admitting that the Hon'ble
President of India has accorded "Assent" to A.P. Amendment
Act (Act No.22 of 2018), it is contended that the said assent is
mechanical and empty formality, as neither the State
Government nor the Union of India has pointed out the
circumstances to the Hon'ble President of India about the
repugnancy and reasons for having such a law despite the
lapse of the Ordinances. Reference is made to the decision of
the Hon'ble Supreme Court in Kaiser-I-Hind Pvt. Ltd. v.
National Textile Corporation, reported in (2002) 8 SCC
182. It is argued that the impugned A.P. Amendment Act
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(Act No.22 of 2018) is repugnant to the Principal Act and is
thus ultra vires Article 254(2) of the Constitution of India.
Reference is also made to the decisions of the Hon'ble
Supreme Court in Gram Panchayat of Village Jamalpur v.
Malwinder Singh and Ors., reported in (1985) 3 SCC 661,
Grand Kakatiya Hotel v. Srinivasa Resorts, reported in
(2009) 5 SCC 342 and that of Bombay High Court in
Basantlal Banarsilal v. Bansilal Dagdulal, reported in AIR
1995 Bom 35.
18. Per contra, Sri S. Sriram, the learned Advocate General,
would contend that the petitioners' contention that in the
absence of saving clause in Ordinance No.5 of 2015 with the
lapsing of the Ordinance, the notification for land acquisition
also lapses, is clearly untenable. He would refer to the
decision of the Hon'ble Supreme Court in Krishna Kumar
(supra) at paragraphs 90, 91 and 94. According to him, the
overriding test is one of grave public interest and
constitutional necessity, which will subsume the requirements
of irreversibility and impracticability. He would submit that an
amount of Rs.678 crore has already been paid to the
landowners and the land already in possession of the
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W.A.No.852 of 2016
Government is 2064 acres as against 2200 acres meant for
airport development. The total number of affected landowners
are 1959out of which 1937 landowners have agreed to for
consent awards which have since been passed.
19. Referring to the Division Bench judgment of erstwhile
High Court of Andhra Pradesh in Gampa Dali Naidu v. State
of Andhra Pradesh, reported in 1990 (2) ALT 363, learned
Advocate General would submit that publication of the
notification in the District Gazette is permissible for the reason
that the District Gazette is also published by the State. He
also refers to the decision of the erstwhile High Court of
Andhra Pradesh in Seethapathi Nageswara Rao & ors v.
the Government of A.P. and others, reported in AIR 1978
AP 121 and the decision of the Hon'ble Supreme Court in
Waste Products Reclaimor Pvt. Ltd. v. Bharat Cooking
Coal Ltd. and others, reported in 1993 SUPP (2) SCC 358.
20. It is also argued that the impugned notifications for
acquisition are not vitiated for want of specific notification
under proviso to Section 3(e) of the LA Act, 2013 and the
State has already notified the respective District Collectors to
be the appropriate Government for acquisition of the lands
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W.P.Nos.32956, 33034 of 2015;
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W.A.No.852 of 2016
under the statutory Rules in exercise of power under Section
109 of the LA Act, 2013 after compliance with the pre-
condition of prior publication under Section 112 of the LA Act,
2013 and the same has already been notified in terms of
Section 3(v) of the LA Act, 2013. Rule 2(b) of the Rules, 2014
in substance, is in effectuation of the enablement under the
proviso to Section 3(e) of the LA Act, 2013 and that there is
substantial compliance with the mandate under the said
provision. The defect, if any, in the form of notification or
absence of referral to the source of power to Section 3(e) of
the LA Act, 2013 does not detract from the substantial
compliance to the procedural law prescribed under the Statute
and that there is no prejudice suffered by the landowners. It
is further submitted that the writ petitioners, particularly,
petitioner in W.P.No.33034 of 2015, has participated by filing
objections on 19.10.2015 under Section 15 of the LA Act,
2013 which have been disposed of on 29.01.2016 prior to
publication of declaration under Section 19 of the LA Act, 2013
on 23.04.2016.
21. It is next contended that Rule 4(2)(b) of the Statutory
Rules comprised in G.O.Ms.No.389 dated 20.11.2014 is not
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ultra vires the proviso to Section 3(e) of the LA Act, 2013
because under the Rules, the District Collector has been
conferred with the power of appropriate Government without
imposing a limit on the extent of land to be acquired.
Reference is made to the decisions of the Hon'ble Supreme
Court in Labour Commissioner v. Burhanpur Tapti Mills,
reported in 1964 SC 1687, T.R. Sharma v. Prithvi Singh,
reported in 1976 (1) SCC 226, Jamatraj Kewalji Govani v.
State of Maharashtra, reported in AIR 1968 SC 178 and a
judgment of the erstwhile High Court of Andhra Pradesh in
Yelamarthi Sarath Kumar v. State of A.P., reported in
MANU/AP/0157/2011.
22. Learned Advocate General would further submit that the
impugned notification for land acquisition is not vitiated for
want of compliance with Section 2(2) of the Principal Act,
because Section 3 of the Amending Ordinance as replicated by
the State Amendment Act 22 of 2018, provides that the
acquisition of land for the projects listed in sub-section (1) of
Section 10(A) and the purposes specified therein shall be
exempted from the provisions of the first proviso to this sub-
section. According to him, the provision of prior consent and
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the mandate of the first proviso were in the context of the
scenario of pre-amended Section 10(A). However, subsequent
to the amendment, the obligation of securing consent along
with social impact assessment is obviated. The imposition of
prior sanction of landowners to be undertaken along with the
social impact assessment under Section 2(2) was in the
context of inevitable application of Chapter II and Chapter III
of the Act for all acquisitions without exception at the time of
inception of the Act. However, subsequent to the
amendments, there is no duty on the State to conduct a social
impact assessment. Reference is also made to the decision of
the Hon'ble Supreme Court in Dadi Jagannadham v.
Jammulu Ramulu, reported in AIR 2001 SC 2699.
23. It is also argued that there is no violation of Section
10(A) of the LA Act, 2013 and the State has ensured minimum
acquisition of the land, inasmuch as initially the State
proposed acquisition of 5311 acres of land, but the State
constantly applied its mind to the actual requirements of the
project and the allied activities and pruned the required extent
of land which now is at 2700 acres. Rest of the land initially
notified has been de-notified in due course of time. Replying
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to petitioners' argument with regard to G.O.Ms.No.571 dated
14.09.2012 in respect of requirement of land for the airport, it
is submitted by him that the guidelines under the said G.O.
are in relation to allotment of Government land to various
requisitioning authority, which, in any way, does not serve as
a guide in respect of locating an international airport with the
size of operations envisaged in the present international
airport in a metropolitan region. He would refer to the
judgment of the High Court of Judicature at Hyderabad for the
State of Telangana and the State of Andhra Pradesh in the
matter of Uppada Siva Reddy v. the Union of India and
others (PIL No.212 of 2015 dated 31.08.2015) wherein the
plea of excess land being acquired for the proposed project at
Bhogapuram, was turned down.
24. It is next contended by the learned Advocate General
that there is no violation of Section 10(A) of the LA Act, 2013
on the touchstone of vesting of the land in the Government as
prescribed under Section 10(A)(1)(e) of the LA Act, 2013.
Referring to the concessionaire agreement entered into
between the SPV and the successful bidder at Articles 10.1,
10.2 and 42, it is submitted that the said Articles clearly limit
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the rights of the bidder to right of way, licensed use, regulated
access with restriction even on subletting. The ownership is
always vested with the Government and there is no transfer of
land to the private corporate. Further arguing that on
completion of the concessionaire period after the
concessionaire agreement, the airport also will be transferred
and vested with the Government.
25. Insofar as petitioners' challenge to the constitutional
validity of A.P. State Act No.22 of 2018 is concerned, learned
Advocate General would submit that challenge to the vires of
an enactment ought to be elaborately pleaded, demonstrated
as regards lack of competence or any violation of any of the
fundamental rights. Reference is made to the decisions in
State of Haryana v. State of Punjab and another,
reported in (2004) 12 SCC 673 SC and J. Venkateswarlu
v. Union of India and others, reported in 2002 (2) ALT
725. It is contended that the Central Act as well as the State
Act enacted in terms of Entry 42 of the Concurrent List and the
repugnancy is resolved by securing the assent of the Hon'ble
President of India under Article 254(2) of the Constitution of
India. The contention of the petitioners, in the absence of a
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W.A.No.852 of 2016
foundational pleading that the assent of the President of India,
does not satisfy the tests laid down by the Hon'ble Supreme
Court in the case of Kaiser-I-Hind Pvt. Ltd. (supra), is
factually without any substance and legally untenable. He
would refer to paragraphs 74, 75, 94 and 95 of the said
judgment.
26. With regard to the challenge to the retrospective
operation of the State Act 22 of 2018, it is submitted by the
learned Advocate General that the said contention is without
any substance and that similar legislations with same effect
including with retrospective date, have been upheld by the
Gujarat High Court in relation to Gujarat State Amendment
Act, 2016 in Jigarbhai Amritbhai Patel v. State of Gujarat
and others, reported in MANU/GJ/3564/2019; Karnataka
High Court in relation to Karnataka State Amendment Act,
2019 in S. Jalaja v. Union of India, reported in
MANU/KA/3945/2021 and the Supreme Court decision in
the matter of G. Mohan Rao v. State of Tamil Nadu,
reported in 2021 SCC Online SC 440, dealing with Tamil
Nadu Amendment to respective enactments exempting the
provisions of Act 30 of 2013.
HCJ & DVSS, J
W.P.Nos.32956, 33034 of 2015;
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27. Learned Advocate General would contend, in addition,
that any alleged irregularities in the process of acquisition in
the absence of any cogent pleading or demonstrable evidence,
does not vitiate the process of acquisition initiated and
concluded in respect of the land under present acquisition.
Highlighting the fact that the total extent of land covered in
the writ petitions filed before this Court is 1639.83 acres, it is
submitted that, thereafter, some of the writ petitioners filed
affidavits according their consent to acquisition; thus leaving
pending land to be acquired at 89.465 acres in November
2021; subsequently, consent was received for another area
admeasuring 52.315 acres, leaving only 37.15 acres of land
pending to be acquired as on date. He would submit that High
Court being a Court of Equity can mould relief in order to
subserve public interest and the State is willing to pay
compensation reckoning the market value. He would refer to
the decision in Bondu Ramaswamy and others v.
Bangalore Development Authority and others, reported in
(2010) 7 SCC 129, wherein the Hon'ble Supreme, while
dealing with the salutary principle of public interest in higher
and large public good securing an affirmation over an
HCJ & DVSS, J
W.P.Nos.32956, 33034 of 2015;
-24- W.P.No.8639 of 2016 &
W.A.No.852 of 2016
individual technical plea of compliance with the provisions of
law, moulded the relief accordingly. He would also refer to the
decisions in Savitri Devi v. State of Uttar Pradesh and
others, reported in (2015) 7 SCC 21, Ramesh Chandra
Sankhla v. Vikram Cement Ltd., reported in (2008) 14
SCC 58 and judgment dated 25.02.2021 of this Court in
W.A.No.371 of 2020 in the matter of Appasani Babu Rao v.
Union of India and others.
28. Based on the above submissions, learned Advocate
General would seek dismissal of the writ petitions.
29. Based on the rival submissions raised at the Bar by the
learned senior counsel for the petitioners and the learned
Advocate General, the following issues would arise for
adjudication in this batch of cases:
1. Whether the impugned notifications under Section 11(1)
of the LA Act, 2013 would lapse, as the same are not
saved after Ordinance No.9 of 2014, Ordinance No.4 of
2015 and Ordinance No.5 of 2015 were allowed to lapse
without there being any saving clause?
2. Whether the impugned notifications are bad in law for
the same having not been notified in the State Gazette
and notified only in the District Gazette?
HCJ & DVSS, J
W.P.Nos.32956, 33034 of 2015;
-25- W.P.No.8639 of 2016 &
W.A.No.852 of 2016
3. Whether the impugned notifications for acquisition are
vitiated for want of specific notification under the proviso
to Section 3(e) of the LA Act, 2013?
4. Whether the impugned notifications for land acquisition
are vitiated for want of compliance with Section 2(2) of
the Principal Act?
5. Whether there is any violation of Section 10A of the LA
Act, 2013 in respect of identifying the extent of the land
and the land being vested in private entity; if yes, the
effect thereof?
6. Whether the A.P. Amendment Act (Act No.22 of 2018),
i.e. the Right to Fair Compensation and Transparency in
Land Acquisition, Rehabilitation and Resettlement
(Andhra Pradesh Amendment) Act, 2018, is
unconstitutional/ultra vires for violating Article 254(2) of
the Constitution of India and is not retrospective?
Issue No.1:
30. The Parliament has enacted the Right to Fair
Compensation and Transparency in Land Acquisition,
Rehabilitation and Resettlement Act, 2013, to ensure, in
consultation with institutions of local self-government and
Gram Sabhas established under the Constitution, a humane,
participative, informed and transparent process for land
acquisition for industrialisation, development of essential
HCJ & DVSS, J
W.P.Nos.32956, 33034 of 2015;
-26- W.P.No.8639 of 2016 &
W.A.No.852 of 2016
infrastructural facilities and urbanisation with the least
disturbance to the owners of the families whose land has been
acquired or proposed to be acquired or are affected by such
acquisition and make adequate provisions for such affected
persons for their rehabilitation and resettlement and for
ensuring that the cumulative outcome of compulsory
acquisition should be that affected persons become partners in
development leading to an improvement in their post
acquisition social and economic and for matters connected
therewith or incidental thereto.
31. Section 2 of the LA Act, 2013 speaks about Application
of the Act relating to land acquisition, compensation,
rehabilitation and resettlement, when the appropriate
Government acquires land for its own use, hold and control,
including for Public Sector Undertakings and for public
purpose, and shall include, amongst others, infrastructure
projects. Admittedly, the public purpose involved in the
present batch of cases, i.e. development of an airport at
Bhogapuram, is one of such projects for which acquisition is
permissible under the LA Act, 2013. Section 2(2) of the LA
Act, 2013 provides that the provisions of the Act relating to
HCJ & DVSS, J
W.P.Nos.32956, 33034 of 2015;
-27- W.P.No.8639 of 2016 &
W.A.No.852 of 2016
land acquisition, consent, compensation, rehabilitation and
resettlement, shall also apply when the appropriate
Government acquires land for public private partnership
projects, where the ownership of the land continues to vest
with the Government, for public purpose as defined in sub-
section (1). Clause (ii) of the first proviso to sub-section (2)
provides that in the case of acquisition for public private
partnership projects, prior consent of at least seventy percent
of those affected families, as defined in sub-clauses (i) and (v)
of clause (c) of Section 3, shall be obtained through a process
as may be prescribed by the appropriate Government;
whereas the second proviso provides that the process of
obtaining consent shall be carried out along with the Social
Impact Assessment study referred to in Section 4. Section 4
speaks about preparation of Social Impact Assessment Study,
whereas Section 5 provides for public hearing for Social
Impact Assessment; Section 6 mandates publication of Social
Impact Assessment; Section 7 speaks about appraisal of Social
Impact Assessment report by an Expert Group and, thereafter,
Section 8 makes provision for examination of proposals for
land acquisition and Social Impact Assessment report by
HCJ & DVSS, J
W.P.Nos.32956, 33034 of 2015;
-28- W.P.No.8639 of 2016 &
W.A.No.852 of 2016
appropriate Government. Section 9 makes provision for
exemption from Social Impact Assessment, where land is
proposed to be acquired invoking the urgency provisions under
Section 40. Section 10 speaks about the special provision to
safeguard food security.
32. The President of India issued Ordinance No.9 of 2014
introducing, amongst others, Section 10A in the Principal Act,
providing the appropriate Government may, in the Public
interest, by notification, exempt the following projects from
the application of the provisions of Chapter II and Chapter III
of the Act, which includes in clause (e), infrastructure and
social infrastructure projects including projects under public
private partnership where the ownership of land continues to
vest with the Government. As the Ordinance could not be
converted into an Act of Parliament, another Ordinance being
Ordinance No.4 of 2015 introducing similar amendment was
promulgated providing in Section 14 thereof that Ordinance
No.9 of 2014 is repealed. However, notwithstanding such
repeal, anything done or any action taken under the principal
Act, as amended by the said Ordinance, shall be deemed to
have been done or taken under the principal Act, as amended
HCJ & DVSS, J
W.P.Nos.32956, 33034 of 2015;
-29- W.P.No.8639 of 2016 &
W.A.No.852 of 2016
by this Ordinance. Once again, Ordinance No.4 of 2015 was
not made an Act of Parliament and the President of India
promulgated another Ordinance, i.e. Ordinance No.5 of 2015
on similar lines as that of Ordinance No.9 of 2014 and
Ordinance No.4 of 2015. Section 15 of Ordinance No.5 of
2015 again contained similar repeal and saving clause.
33. According to the learned senior counsel for the
petitioners, the last of the Ordinances, viz. Ordinance No.5 of
2015, having been allowed to lapse without the same being
made an Act of Parliament, any action taken under the said
Ordinance is not saved. According to him, the saving clause in
Ordinance No.5 of 2015 saves the action taken under
Ordinance No.4 of 2015 and similarly the actions taken under
Ordinance No.9 of 2014 is saved under Ordinance No.4 of
2015. However, the same is not applicable when the last
Ordinance lapsed without there being any saving clause. It
is, thus, put forth that both the notifications issued under
Section 10A of the LA Act, 2013, exempting Chapter II and
Chapter III and preliminary notifications for land acquisition
issued under Section 11(1) of the LA Act, 2013 on the basis of
HCJ & DVSS, J
W.P.Nos.32956, 33034 of 2015;
-30- W.P.No.8639 of 2016 &
W.A.No.852 of 2016
Ordinance No.5 of 2015, are not saved and would lapse
forever.
34. The issue as to whether upon an Ordinance ceasing to
operate either as a result of its disapproval by the Legislature
or on its expiry after the prescribed period of six months of the
assembling of the Legislature, all consequences that have
ensued would necessarily stand effaced and obliterated, fell for
consideration before the Hon'ble Supreme Court in Krishna
Kumar Singh v. State of Bihar & others (supra). The
Hon'ble Supreme Court, after noticing the expression "cease to
operate" does not carry the same meaning as the expression
"void", held that an Ordinance which has ceased to operate is
not void. As an instrument, it is stillborn and during the
tenure of the Ordinance, it has the same force and effect as a
law enacted by the Legislature. It is further held that the
expression "cease to operate" in Article 213(2)(a) applies both
to an Ordinance whose tenure expires after the prescribed
period as well as in relation to an Ordinance which is
disapproved by the Legislature. The content of the expression
cannot, hence, mean two separate things in relation to the two
situations. The issue which needs elaboration is whether an
HCJ & DVSS, J
W.P.Nos.32956, 33034 of 2015;
-31- W.P.No.8639 of 2016 &
W.A.No.852 of 2016
Ordinance, which by its very nature has a limited life, can
bring about consequences for the future (in terms of the
creation of rights, privileges, liabilities and obligations) which
will enure beyond the life of the Ordinance. In deciding this
issue, the court must adopt an interpretation which furthers
the basic constitutional premise of legislative control over
Ordinances.
35. After considering its earlier decisions in State of Orissa
v. Bhupendra Kumar Bose, reported in 1962 Supp (2) SCR
380, S.R. Bommai v. Union of India, reported in (1994) 3
SCC 1 and T. Venkata Reddy v. State of A.P., reported in
(1985) 3 SCC 198, it was held thus in paragraph 94:
"94. The judgment of Sujata Manohar, J. does
indicate (as one commentator on the subject
States), that the learned Judge "is willing to engage
in some form of heightened scrutiny" [ Shubhankar
Dam, Presidential Legislation in India at p. 151] .
Yet, the threefold test of irreversibility, impracticality
or public interest may, if broadly applied, cover
almost every situation where an Ordinance has
ceased to operate. A demolition may have been
effected. An order of conviction may have been
passed upon a trial. An acquisition of an industrial
HCJ & DVSS, J
W.P.Nos.32956, 33034 of 2015;
-32- W.P.No.8639 of 2016 &
W.A.No.852 of 2016
undertaking may be made. Large-scale
regularisation of contractual or casual employees
may be effected. Legalisation of unauthorised
structures may be made. A myriad different
situations can be contemplated. Must every action
under an Ordinance produce binding rights,
obligations and liabilities which will survive its
demise? In our view, in determining the issue the
overarching consideration must be the element of
public interest or constitutional necessity. Ultimately,
it is this element of public interest which would have
guided the Court in Bhupendra Kumar Bose [State of
Orissa v. Bhupendra Kumar Bose, 1962 Supp (2)
SCR 380 : AIR 1962 SC 945] in holding that the
validation of an election by an Ordinance should not
be set at naught (though the logic adopted by the
Court was flawed). Bhupendra Kumar Bose [State of
Orissa v. Bhupendra Kumar Bose, 1962 Supp (2)
SCR 380 : AIR 1962 SC 945] also raises troubling
aspects independently on its facts because in that
case a Bill which was moved before the State
Legislature to incorporate provisions similar to those
of the Ordinance was defeated. Be that as it may, in
deciding to mould the relief, the effort of the Court
would be to determine whether undoing what has
been done under the Ordinance would manifestly be
contrary to public interest. Impracticality and
irreversibility in that sense are aspects which are
HCJ & DVSS, J
W.P.Nos.32956, 33034 of 2015;
-33- W.P.No.8639 of 2016 &
W.A.No.852 of 2016
subsumed in the considerations which weigh in the
balance while deciding where public interest lies.
Impracticality cannot by itself be raised to an
independent status because it would then be simple
enough for the executive to assert the supposed
complexities in undoing the effects of an Ordinance.
Since the basic constitutional value which is at issue
is of parliamentary supremacy and control, the
moulding of relief can be justified in cases involving
grave elements of public interest or constitutional
necessity demonstrated by clear and cogent
material."
36. It is, thus, settled that when the act done under a lapsed
Ordinance satisfies the threefold test of irreversibility,
impracticality or public interest, what is done under the lapsed
Ordinance cannot be undone.
37. We shall now proceed to apply the above threefold test
to the facts of the present cases to consider and decide as to
whether the actions taken under the lapsed Ordinances can be
saved or the notifications would themselves lapse for having
not complied with the provisions which were exempted under
Section 10A of the LA Act, 2013, as introduced by Ordinance
No.5 of 2015. In the case at hand, we are dealing with an
infrastructure project of huge importance for the State of
HCJ & DVSS, J
W.P.Nos.32956, 33034 of 2015;
-34- W.P.No.8639 of 2016 &
W.A.No.852 of 2016
Andhra Pradesh. Bhogapuram Airport is proposed to be built
as an ultramodern international airport catering to the needs
of the people of the State of Andhra Pradesh and neighbouring
States. Out of approximately 2700 acres notified for
acquisition, 2200 acres are meant for construction of airport.
Consent awards have already been passed in respect of 2064
acres and an amount of Rs.678 crore has already been paid to
the landowners. Out of 1959 affected landowners, 1937
owners have agreed for consent awards and for another 21
landowners, amounts have been deposited with the award.
The land already in possession of the Government is about
2064 acres. It was informed to the Court in the course of
arguments that except for a patch of 37 acres of land involved
in the present batch of cases, the remaining area is available
for development of the airport. It is only this batch of cases,
which are holding up the project for the last more than seven
years. Therefore, applying the threefold test of irreversibility,
impracticality and public interest, we have no hesitation in
holding that requiring the State to follow the procedures
contemplated under Sections 3 to 10 of the LA Act, 2013,
would be contrary to public interest, as the same will delay
HCJ & DVSS, J
W.P.Nos.32956, 33034 of 2015;
-35- W.P.No.8639 of 2016 &
W.A.No.852 of 2016
implementation of the project when almost entire land except
37 acres is available for development of the airport. We are,
thus, of the considered view that despite lapse of the last
Ordinance, i.e. Ordinance No.5 of 2015, the acts done or
action taken by issuing notification under Section 11(1) of the
LA Act, 2013, would not lapse and the same holds good for the
present impugned acquisition.
Issue No.2:
38. It is argued by the learned senior counsel for the
petitioners that the impugned land acquisition notifications
are published in the District Gazette and not in the Gazette of
the State or the Gazette of India, as required under Section
11(1) read with Section 3(v) of the LA Act, 2013 and Rule
19(3) of the Rules, 2014. According to him, notification as
mentioned in Section 3(v) of the LA Act, 2013 would mean a
notification published in the Gazette of India or the Gazette of
a State and the expression "notify" shall be construed
accordingly. Thus, in the absence of the notification having
been published in accordance with law, the same is illegal and
non est. Reference is made to the decision of the Madras
High Court in A.S. Periasamy (supra) and Tamilnadu
HCJ & DVSS, J
W.P.Nos.32956, 33034 of 2015;
-36- W.P.No.8639 of 2016 &
W.A.No.852 of 2016
Housing Board (supra) and the judgments of the Hon'ble
Supreme Court in K. Dayanandalal and others v. State of
Kerala and others, reported in (1996) 9 SCC 728 and ITC
Badrachalam Paper Boards (supra). It is further argued
that even in the absence of any definition of "Official Gazette"
in the LA Act, 2013, the definition of "Official Gazette" under
Section 3(39) of the General Clauses Act, 1897 would apply,
which defines Official Gazette to mean Gazette of India or the
Official Gazette of a State. Since proper publication is
mandatory, non-publication of the land acquisition notification
in the State Gazette would make the entire exercise invalid
and void ab initio.
39. Per Contra, learned Advocate General has referred to
the judgments rendered by a Division Bench of the High Court
of Andhra Pradesh in Gampa Dali Naidu (supra) and
Seethapathi Nageswara Rao (supra) to contend that
publication of the notification in the District Gazette cannot be
concluded to be non-compliant with the mandate of the Act
and that as per Board Standing Order 193, District Gazette is
clearly an Official Gazette of the State. Further, reference is
made to Waste Products Reclaimor Pvt. Ltd (supra) to
HCJ & DVSS, J
W.P.Nos.32956, 33034 of 2015;
-37- W.P.No.8639 of 2016 &
W.A.No.852 of 2016
contend that in the absence of any prejudice being caused to
the petitioners by reason of non-publication of the impugned
notifications in a State Gazette, a technical non-compliance
ought not to result in the annulment of the land acquisition
proceedings.
40. In A.S. Periasamy (supra), relied on by the learned
senior counsel for the petitioners, a learned single Judge of
the Madras High Court held that the expression Official
Gazette in Central Act means the Official Gazette of the State
and cannot mean a District Gazette. Learned single Judge
has referred to the Standing Orders of the Board of Revenue
relating to acquisition of land for public purpose, wherein
Chapter VII Section 7 II (b) provides that the Government will
direct the publication of the notification if they approve of the
proposed acquisition. The notification should be published
only in English in the Fort St. George Gazette. It need not be
republished either in English or in the regional language in the
District Gazette. Thus, in the case before Madras High Court,
there was express bar in the Standing Orders of Board of
Revenue that the notification need not be published in the
District Gazette. Similar verdict was rendered by a Division
HCJ & DVSS, J
W.P.Nos.32956, 33034 of 2015;
-38- W.P.No.8639 of 2016 &
W.A.No.852 of 2016
Bench of Madras High Court in Tamilnadu Housing Board
(supra).
41. In Gampa Dali Naidu (supra), a Division Bench of the
High Court of Andhra Pradesh had an occasion to consider as
to whether publication of land acquisition notification in the
District Gazette is proper compliance of publication of
notification under Section 4(1) of the Land Acquisition Act,
1894. According to the petitioners therein, the notification
having been issued by the Government, the same ought to
have been published in the A.P. Gazette; hence, its
publication in the District Gazette is no publication within the
meaning of Section 4, inasmuch as District Gazette is not the
Official Gazette within the meaning of Section 4. The Division
Bench framed an issue as to what is the meaning of "Official
Gazette" and "whether the District Gazette is not an Official
Gazette". After noticing that the Official Gazette is not
defined in the Land Acquisition Act, 1894, resort was taken to
Section 3(39) of the General Clauses Act defining the word
"Official Gazette" or "Gazette". Thereafter, the Court
concluded thus in paragraphs 12 to 14:
HCJ & DVSS, J
W.P.Nos.32956, 33034 of 2015;
-39- W.P.No.8639 of 2016 &
W.A.No.852 of 2016
"12. It thus appears that publication of both the A.P.
Gazette and the District Gazette is an official act.
Both are published by the Authority, though both of
them lack statutory basis. A few District Gazettes
are placed before us, which show that there is no
particular manner in which they are published. Some
District Gazettes carry the heading "A P Gazette"
published by authority, indicating further that it is
published in a particular district while in some other
cases the Gazette carries the heading "District
Gazette" with the name of the district prefixed. The
sum and substance of this discussion is that District
Gazette is as much an 'Official Gazette' as the
'Andhra Pradesh Gazette'. It would not be correct to
say that the A P Gazette is the only Official Gazette
and that the District Gazette is not an Official
Gazette. We must also say that no order or
proceeding of the Government has been brought to
our notice which says that the notifications issued by
the Government should be published in the A.P.
Gazette alone, and that their publication in the
District Gazette is not valid, or regular. On the
contrary, the Printing Manual referred to above
expressly provides for publication of Government
Orders and Notifications in the District Gazette. We
must accordingly hold that the publication of the
impugned notification in the Visakhapatnam District
Gazette on 29-6-85 is a publication in the Official
HCJ & DVSS, J
W.P.Nos.32956, 33034 of 2015;
-40- W.P.No.8639 of 2016 &
W.A.No.852 of 2016
Gazette, and thus complies with the requirement of
Section 4(1)."
"13. This is the conclusion arrived at by a learned
single Judge of this Court in Revurl
Hymavati v. Govt, of A.P. (2) 1985 (2) ALT 104
(Notes on Recent Cases)."
"14. Learned Counsel for the petitioner (appellant)
brought to our notice that A P Act 22 of 1976. which
amended the Land Acquisition Act in certain
particulars, expressly makes a distinction between
"A P Gazette" and 'District Gazette'. The said Act
amended certain provisions of the Land Acquisition
Act in so far as the Act was invoked for acquisition of
land "for the construction, extension or improvement
of any dwelling houses for the poor". It provided that
where a land is acquired for the said purpose, the
notification under section 4(1) can be issued by the
District Collector also. In other words, such a
notification can either be issued by the Government
or by the District Collector. Such a notification can
be published In the Official Gazette, or the District
Gazette Learned Counsel wants to read the said
amendment as providing that where the notification
is by the Government it should necessarily be
published in the A.P. Gazette and where the
notification is issued by the District Collector it can
be published in the District Gazette. We are
however, unable to infer any such restriction from
HCJ & DVSS, J
W.P.Nos.32956, 33034 of 2015;
-41- W.P.No.8639 of 2016 &
W.A.No.852 of 2016
Section 4(1) as amended by Act 22 of 1976. As
amended by the said Amending Act, Section 4(1) of
the Land Acquisition act-before it was amended by
Central Amendment Act 68 of 1984-read as follows:
"4. Publication of preliminary notification and powers
of officers thereupon:
(1) Whenever it appears to the appropriate
Government (or the District Collector) that land in
any locality is needed or is likely to be needed for
any public purpose, a notification to that effect shall
be published in the Official Gazette (or the District
Gazette), and the Collector shall within 40 days from
the date of publication of such notification cause
public notice of the substance of such notification to
be given at, convenient places in the said
locality........"
"We do not think that the above provision is capable
of being understood as saying that the District
Gazette is not an 'Official Gazette' as suggested by
the learned counsel for the appellant. In any event,
the acquisition in this case is not one to which A.P.
Amendment Act 22 of 1976 is attracted. It must
therefore be excluded from consideration when
determining the meaning of the expression "Official
Gazette", occurring in Section 4(1)."
HCJ & DVSS, J
W.P.Nos.32956, 33034 of 2015;
-42- W.P.No.8639 of 2016 &
W.A.No.852 of 2016
42. In an earlier decision in Seethapathi Nageswara Rao
(supra), a Five Judge Bench of the High Court of Andhra
Pradesh had an occasion to consider similar issue wherein the
following was held in paragraph 36:
"36. Another comment is that Section 15-A does not
provide for individual notices to the members of the
society or to society or managing committee before
action is taken for amalgamation or liquidation and
the general notice provided by publication in the
gazette hardly satisfies the requirements of
principles of natural justice. It is for the legislature
to decide the mode of publication. The District
Gazette is an official Gazette and is published under
the authority of the Board of Revenue as per its
standing orders. B.S.O. 193 in Chapter XVII says
that "a monthly official gazette will be published in
each district. Detailed rules regarding its printing
and issue will be found in the printing manual."
43. We are now faced with divergent views taken by
different High Courts, i.e. one by a Single Bench, Division
Bench of Madras High Court and other by a Division Bench and
Five Judge Bench of the erstwhile High Court of Andhra
Pradesh. The decision rendered by the erstwhile High Court of
HCJ & DVSS, J
W.P.Nos.32956, 33034 of 2015;
-43- W.P.No.8639 of 2016 &
W.A.No.852 of 2016
Andhra Pradesh is binding on this Court, whereas the decision
rendered by a different High Court has only persuasive value.
We, therefore, have no hesitation in following the law laid
down by our own High Court, which has clearly held that the
District Gazette is an Official Gazette and is published under
the authority of the Board of Revenue as per its Standing
Order 193, wherein under Chapter XVII, it is provided that "a
monthly official gazette will be published in each district. We
would, therefore, conclude that publication of the land
acquisition notifications in the District Gazette is proper
compliance as provided under Section 11(1)(a) of the LA Act,
2013 and the notifications cannot be quashed on this ground.
Issue No.3:
44. Section 3(e) of the LA Act, 2013 defines the word
"appropriate government" to mean, in relation to acquisition
of land situated within the territory of, a State, the State
Government with proviso that in respect of a public purpose in
a District for an area not exceeding such as may be notified
by the appropriate Government, the Collector of such District
shall be deemed to be the appropriate Government.
HCJ & DVSS, J
W.P.Nos.32956, 33034 of 2015;
-44- W.P.No.8639 of 2016 &
W.A.No.852 of 2016
45. In view of the above definition, petitioners have
contended that in the absence of a specific notification by the
appropriate Government, i.e. the State Government
determining the area for which the District Collector shall be
deemed to be the appropriate Government, delegating the
power to the District Collector without specifying the limit is
illegal and does not satisfy the requirement of law.
46. Admittedly, the State Government has notified the
respective District Collectors to be the appropriate
Government for the acquisition of lands under the statutory
rules. Rule 2(b) thereof has authorized the District Collector
to perform the duties and functions of the appropriate
Government for any extent of land. The issue is whether a
separate notification is required as is mentioned in the proviso
to Section 3(e) or the delegation of powers of the appropriate
Government to the District Collector under the Rues, 2014,
would be sufficient compliance of the proviso to Section 3(e)
of the LA Act, 2013, which are statutory Rules made in
exercise of powers under Section 109 of the LA Act, 2013.
The same has been issued after compliance with the pre-
condition of prior publication as required under Section 112 of
HCJ & DVSS, J
W.P.Nos.32956, 33034 of 2015;
-45- W.P.No.8639 of 2016 &
W.A.No.852 of 2016
the LA Act, 2013. Sub-section (1) of Section 109 provides
that subject to the other provisions of the Act, appropriate
Government may, by notification make Rules for carrying out
the provisions of this Act. If the provision contained under
the proviso to Section 3(e) is read in harmony with Section
109(1) and Section 112 of the LA Act, 2013, it can be safely
concluded that there is no requirement of a separate
notification delegating powers of appropriate Government to
the Collector of a District in respect of a particular area. If
the Rules themselves which have already been notified enable
the District Collector to function as appropriate Government
for any extent of land within his District, the same cannot be
faulted with in the absence of a separate notification. In our
considered view, Rule 2(b) of the Rules, 2014, is in
compliance with the proviso to Section 3(e) of the LA Act,
2013 and, as such, there is no violation of the said provision.
Accordingly, this argument of the petitioners fails and is
rejected.
Issue No.4:
47. It is argued that the impugned land acquisition
notifications without obtaining prior consent of 70 percent of
HCJ & DVSS, J
W.P.Nos.32956, 33034 of 2015;
-46- W.P.No.8639 of 2016 &
W.A.No.852 of 2016
the affected families and conclusion of Social Impact
Assessment Study and Food Securities as required under
Section 2(2) of the LA Act, 2013, first proviso read with Rule
19 of the Right to Fair Compensation and Transparency in
Land Acquisition, Rehabilitation and Resettlement (Social
Impact Assessment and Consent) Rules, 2014 and Chapter II
and Chapter III of the LA Act, 2013, are violating Section 11
read with Rule 19 of the Rules, 2014 and are, therefore,
invalid. It is further argued that consent was obtained after
issuance of Section 19 notification, which does not fulfill the
requirement of prior consent as envisaged under Section 2(2)
first proviso.
48. On the other hand, learned Advocate General has
argued that under Ordinance No.5 of 2015 together with
earlier Ordinance No.9 of 2014 and Ordinance No.4 of 2015,
the newly introduced Section 10A exempted application of
Chapter II and Chapter III of the LA Act, 2013 in case of
acquisition of lands for the projects enumerated thereunder.
In addition, the A.P. Amendment Act (Act No.22 of 2018) also
provided that the acquisition of lands for the projects listed in
sub-section (1) of Section 10A and the purposes specified
HCJ & DVSS, J
W.P.Nos.32956, 33034 of 2015;
-47- W.P.No.8639 of 2016 &
W.A.No.852 of 2016
therein shall be exempted from the provisions of the first
proviso to this sub-section. Thus, the argument, in
substance, is that for the projects of the nature in issue in
these cases, non-compliance of Section 2(2) of the LA Act,
2013 would not arise, as the same can happen only when
Chapter II and Chapter III apply.
49. Section 2(2) of the LA Act, 2013 provides that for public
private partnership projects, prior consent of at least 70
percent of those affected families would be required and the
said consent shall be obtained through a process as may be
prescribed by the appropriate Government and the same shall
be carried out along with Social Impact Assessment Study
referred to under Section 4.
50. However, the A.P. Amendment Act (Act No.22 of 2018),
i.e. the Right to Fair Compensation and Transparency in Land
Acquisition, Rehabilitation and Resettlement (Andhra Pradesh
Amendment) Act, 2018, has inserted the following proviso
after the second proviso to sub-section (2) of Section 2 of the
Principal Act.
"Provided also that the acquisition of land for the
projects listed in Section 10A and the purposes
HCJ & DVSS, J
W.P.Nos.32956, 33034 of 2015;
-48- W.P.No.8639 of 2016 &
W.A.No.852 of 2016
specified therein shall be exempted from the
provisions of the first proviso to this sub-section".
51. It is, thus, clear that the requirement of prior consent of
70 percent affected families as mentioned in the first proviso
to Section 2(2) of the LA Act, 2013 is not applicable when the
land is acquired for the projects listed under Section 10A,
which includes infrastructure projects like establishment of an
international airport.
52. It is also to be noticed that the requirement of prior
consent along with Social Impact Assessment Study is in the
context of application of Chapter II and Chapter III for all
acquisitions without exception. This was the situation when
Section 10A was not introduced by the Ordinances or later
under A.P. Amendment Act (Act No.22 of 2018), which has
retrospective effect. Once the State amendment has inserted
third proviso to sub-section (2) of Section 2 of the LA Act,
2013, exempting compliance of the first proviso for
infrastructure projects, there is no need to seek prior consent
of 70 percent affected families. The fact that process of
obtaining consent is required to be carried out along with
Social Impact Assessment Study clearly contemplates a
HCJ & DVSS, J
W.P.Nos.32956, 33034 of 2015;
-49- W.P.No.8639 of 2016 &
W.A.No.852 of 2016
situation that prior consent is required only where Social
Impact Assessment Study is also required. However, once
the Social Impact Assessment Study provisions as contained
in Sections 4 to 9 are exempted for any particular project,
prior consent clause is also not applicable. This interpretation
is necessary to carry out the obvious intention of the
legislature to facilitate the early completion of infrastructure
projects of substantial importance. In Dadi Jagannadham
(supra), the Hon'ble Supreme Court has held that the settled
principles of interpretation are that the Court must proceed on
the assumption that the legislature did not make a mistake
and that it did what it needed to do. The Court must, as far
as possible, adopt a construction which will carry out the
obvious intention of the legislature.
53. In G.P. Singh's "Principles of Statutory Interpretation"
11th edition, at page No.147, the learned author referred to
the judgment rendered by LORD SHAW in Shannon Realities
Ltd. V. St. Michel (Vill De), reported in (1924) AC 185,
while dealing with the principles regarding avoiding
uncertainty and friction in the system which the statute
purports to regulating. The following is the text in the book:
HCJ & DVSS, J
W.P.Nos.32956, 33034 of 2015;
-50- W.P.No.8639 of 2016 &
W.A.No.852 of 2016
"This principle has been stated by LORD SHAW in
the following words: "Where words of a statute are
clear, they must, of course, be followed but in their
Lordships' opinion, where alternative constructions
are equally open that alternative is to be chosen
which will be consistent with the smooth working of
the system which the statute purports to be
regulating; and that alternative is to be rejected
which will introduce uncertainty, friction or confusion
into the working of the system."
54. Learned author has also referred to the decisions of the
Hon'ble Supreme Court in Central Bank of India v.
Ravindra, reported in AIR 2001 SC 3095 = (2002) 1 SCC
367.
Issue No.5:
55. The next ground of attack raised by the petitioners is
that the precondition of ensuring bare minimum extent of land
required for the project as also to retain the ownership of the
land with the Government having been violated, the
respondents are not eligible to avail exemption under Section
10A of the LA Act, 2013. Referring to Section 4(4) of the LA
Act, 2013, it is argued that the appropriate Government
should have undertaken the exercise of estimation of affected
HCJ & DVSS, J
W.P.Nos.32956, 33034 of 2015;
-51- W.P.No.8639 of 2016 &
W.A.No.852 of 2016
families and the number of families among them likely to be
displaced; whether the extent of land proposed for acquisition
is the absolute bare minimum extent needed for the project.
However, there is non-compliance of this provision, which is
contrary to the object and policy of the LA Act, 2013. It is
also argued that even to avail exemption under Section 10A
of the Act, bare minimum extent of land is required to be
determined. Highlighting the fact that the initial requisition
was for acquisition of 5500 acres of land, it is submitted that
respondents failed to ensure bare minimum land required for
the project. Referring to the land allotment policy of the
Government of Andhra Pradesh, it is argued that the airport of
the size proposed to be completed at Bhogapuram, would
require only 840 acres, whereas the State Government is
acquiring land almost 500 percent more than the required
extent of land. In respect of the issue regarding transfer of
lands to private entity, learned senior counsel would submit
that all the lands have been transferred to Bhogapuram
International Airport Corporation Limited (now Andhra
Pradesh Airport Development Corporation Limited) and, as
such, ownership of all Government lands have been
HCJ & DVSS, J
W.P.Nos.32956, 33034 of 2015;
-52- W.P.No.8639 of 2016 &
W.A.No.852 of 2016
transferred to a private entrepreneur under PPP mode for the
establishment of Bhogapuram Airport irrespective of
respondents acquiring zeroythi or assigned lands. Such
transfer of land is violative of Section 2(a) and Section 10A of
the LA Act, 2013. The acquired land should necessarily be
vested continuously with the Government and the same is
also prescribed as mandatory precondition to avail exemption
under Chapter II and Chapter III of the LA Act, 2013. Since
both the provisions are breached, the same invalidates the
impugned notifications. According to the learned senior
counsel, the SPV by name Bhogapuram International Airport
Company Limited can transfer through divesting majority
stake to successful bidder and the Government may retain
minority stake through equity equal to land cost; thereby
intention of the 1st respondent is clearly evident that the land
is given to SPV whose control ultimately is with the private
company under PPP mode; thereby transferring the ownership
of the land in favour of the private company. This is in
violation of the provisions of law as well as divesting the
respondents to seek exemption from application of Chapter II
HCJ & DVSS, J
W.P.Nos.32956, 33034 of 2015;
-53- W.P.No.8639 of 2016 &
W.A.No.852 of 2016
and Chapter III for the reason that ownership is not retained
by the Government.
56. Countering the above submissions, learned Advocate
General has argued that the State has undertaken the
exercise for identification of the land; therefore, the
statement contrary is factually incorrect. It is put forth that
mere fact that the initial notified acquisition was for 5311
acres of land, which was eventually reduced to 2700 acres of
land, which is almost half of the initial area, goes to
demonstrate that there is serious application of mind to the
actual requirement for the project and the allied activities
connected to the activity of running the airport. According to
the learned Advocate General, the State has continuously
monitored the requirement of the project vis-à-vis extent of
the land acquired, both at the stages prior to the acquisition
and through the process of acquisition, to abide by the
mandate of the proviso to Section 10A, as amended. Insofar
as the required extent of land on the touchstone of
parameters contained in G.O.Ms.No.571 dated 14.09.2012 is
concerned, it is argued by the learned Advocate General that
the guidelines under the said G.O. are in relation to the
HCJ & DVSS, J
W.P.Nos.32956, 33034 of 2015;
-54- W.P.No.8639 of 2016 &
W.A.No.852 of 2016
allotment of Government land to various requisitioning
authority and the allied matters, which in any way, do not
serve as a guide in respect of locating an international airport
in a metropolitan region. He refers to the Division Bench
judgment dated 31.08.2015 in the matter of Uppada Siva
Reddy v. the Union of India and others (PIL No.212 of
2015).
57. Replying to petitioners' contention about vesting of the
lands in a private entity, learned Advocate General would
refer to the recommendations of the project proponent and
paragraphs 4 and 7 of G.O.Rt.No.63 dated 20.05.2015 to
canvass that the G.O. does not envisage any transfer of land
to the SPV or to the successful bidder. Referring to Articles
10.1, 10.2 and 42 of the concessionaire agreement entered
into between the SPV and the successful bidder, learned
Advocate General would highlight that the said Articles clearly
limit the rights of the bidder to right of way, licensed use and
regulated access with restriction even on subletting.
Therefore, the ownership always remains vested with the
Government and there is no transfer of land to the private
entity.
HCJ & DVSS, J
W.P.Nos.32956, 33034 of 2015;
-55- W.P.No.8639 of 2016 &
W.A.No.852 of 2016
58. Considering the rival submissions on the twin issues
raised by the petitioners in respect of not ensuring minimum
acquisition of land and transfer of land to the private entity, it
is to be seen that the initial notification for acquisition was for
5311 acres of land, which was eventually reduced to 2700
acres. This reduction in the extent of land for an international
airport clearly speaks about constant application of mind and
monitoring as to the actual requirement of land. The State
having reduced the requirement of land almost to the half of
the earlier notified area, would lead us to an irresistible
conclusion that the same cannot happen unless the State has
ensured minimum acquisition of land. The project of this
magnitude always requires preparation of plan, which
necessarily includes the land required for the airport and allied
activities. G.O.Ms.No.571 dated 14.09.2012 is a document
titled as "Government land policy" - Uniform guidelines with
regard to Government land to be allotted for various
purposes. According to the guidelines, greenfield airport for
ATR 72/ATR 42 type of aircraft requires about 600 acres of
land, whereas landing bigger aircrafts like AB 320/B-737
requires 840 acres for Aeronautical activities and another 100
HCJ & DVSS, J
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-56- W.P.No.8639 of 2016 &
W.A.No.852 of 2016
acres for non-Aeronautical activities. It is further mentioned
therein that with regard to the existing Non-Metro Airports
like Vijayawada, Rajahmundry, Kadapa and Warangal, there is
proposal for upgradation where total requirement of land
comes to about 1200 to 1300 acres. The policy does not
speak about the area requirement for establishment of an
international airport in the Metropolitan region. Thus, the
document is of no help to the petitioners. In the course of
arguments, learned Advocate General informed this Court that
Bangalore International Airport is established in an area of
4500 acres, whereas Hyderabad International Airport and the
proposed International Airport at Jewar, Noida, are spread
over an area of 5500 acres each.
59. In Public Interest Litigation No.212 of 2015 decided by
the composite High Court on 31.08.2015, challenge was to
the action of the State in acquiring huge land from small and
middleclass farmers disproportionately, as also to cancel the
proposal of setting up a greenfield international airport at
Bhogapuram. Negating the submission in respect of the
location of the airport and the extent of land proposed to be
acquired, the Division Bench observed that it is a matter of
HCJ & DVSS, J
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-57- W.P.No.8639 of 2016 &
W.A.No.852 of 2016
policy, which Government seems to have taken on the basis
of expert advice and future needs and the Court cannot
substitute its opinion and direct the Government either to
cancel the proposal of setting up an international airport or to
change the location. In our considered view, the said finding
by the Division Bench operates as res judicata and petitioners'
contention as to the extent of land proposed to be acquired,
cannot be examined again in these cases.
60. In Balco Employees Union v. Union of India,
reported in (2002) 2 SCC 333, the Hon'ble Supreme Court
has observed that the function of the Court is to see that the
lawful authority is not abused, but not to appropriate to itself
the task entrusted to that authority. In State of M.P. v.
Narmad Bachao Andolan and another, reported in (2011)
7 SCC 639, the Hon'ble Supreme Court has observed that the
Court cannot strike down a policy decision taken by the
Government merely because it feels that another would have
been fairer or more scientific or logical or wiser; the wisdom
and advisability of the policies are ordinarily not amenable to
judicial review unless the policies are contrary to statutory or
HCJ & DVSS, J
W.P.Nos.32956, 33034 of 2015;
-58- W.P.No.8639 of 2016 &
W.A.No.852 of 2016
constitutional provisions or arbitrary or irrational or an abuse
of power.
61. The Concessionaire Agreement executed between the
SPV and the successful bidder provides in Article 42 the rights
and title over the airport site. The entire Article 42 is
reproduced hereunder for ready reference:
"RIGHTS AND TITLE OVER THE AIRPORT SITE"
"42.1 Licensee rights
For the purpose of this Agreement, the
Concessionaire shall have the rights to the use of the
Site as sole licensee subject to and in accordance
with this Agreement, and to this end, it may regulate
the entry and use of the Airport by third parties in
accordance with and subject to the provisions of this
Agreement."
"42.2 Access rights of the Authority and others
42.2.1 The Concessionaire shall allow free access to
the Site at all times for the authorised
representatives of the Authority, Senior Lenders, and
the Independent Engineer, and for the persons duly
authorised by any Government Instrumentality or
Designated GOI Agency to inspect the Airport and to
investigate any matter with their authority, and upon
reasonable notice, the Concessionaire shall provide
HCJ & DVSS, J
W.P.Nos.32956, 33034 of 2015;
-59- W.P.No.8639 of 2016 &
W.A.No.852 of 2016
to such persons reasonable assistance necessary to
carry out their respective duties and functions."
"42.2.2 The Concessionaire shall, for the purpose of
operation and maintenance of any utility or road
specified in Article 11, allow free access to the Site
at all times for the authorised persons and vehicles
of the controlling body of such utility or road."
"42.3 Restriction on sub-letting
The Concessionaire shall not sub-license or sublet
the whole or any part of the Site, save and except as
may be expressly set forth in this Agreement;
provided that nothing contained herein shall be
construed or interpreted as restricting the right of
the Concessionaire to appoint Contractors for the
performance of its obligations hereunder including
for operation and maintenance of all or any part of
the Airport."
62. A bare reading of the contents of Article 42 reproduced
hereinabove manifests that the Concessionaire shall have
rights to the use of the site as sole licensee. The use of the
term "licensee" itself clarifies that the Concessionaire, i.e.
private entity is not the owner of the site, but is a licensee.
There is restriction on subletting as mentioned in Article 42.3,
HCJ & DVSS, J
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-60- W.P.No.8639 of 2016 &
W.A.No.852 of 2016
again suggesting that Concessionaire being a licensee only
and not the owner, cannot create a sub-license or sublet the
whole or any part of the Site. With this provision in the
Concessionaire Agreement, there is no iota of doubt that the
ownership of the site remains with the Government and the
petitioners' contention to the contrary is factually incorrect.
63. In view of the above discussion, both the contentions
raised by the learned senior counsel for the petitioners
regarding acquisition of excess land or not retaining transfer
of the land, are rejected.
Issue No.6:
64. Learned senior counsel for the petitioners would submit
that A.P. Amendment Act (Act No.22 of 2018) inserting the
same provisions which were introduced by Ordinance No.9 of
2014, Ordinance No.4 of 2015 and Ordinance No.5 of 2015,
which were allowed to be lapsed, is unconstitutional because
once the same provisions were not made law, the same
provisions cannot be introduced by State amendment.
According to him, despite A.P. Amendment Act (Act No.22 of
2018) having secured the Assent of the Hon'ble President of
HCJ & DVSS, J
W.P.Nos.32956, 33034 of 2015;
-61- W.P.No.8639 of 2016 &
W.A.No.852 of 2016
India, which is a requirement under Article 254(2) of the
Constitution of India, the said Assent appears to be
mechanical and empty formality as neither the State
Government nor the Union of India have pointed out the
circumstances, repugnancy and the reasons for having such
law despite lapse of the Ordinances. Learned counsel would
refer to the decision of the Hon'ble Supreme Court in Kaiser-
I-Hind Pvt. Ltd. (supra). He would further submit that there
is no material showing that repugnancy between the State
amendment and the Central Act was placed before the
Hon'ble President of India. He would also submit that Assent
given by the President is contrary to established principles of
Constitutional law. The State amendment cannot be
permitted or allowed to have predominance or overriding
effect over the provisions of the Central Act No.30 of 2013.
He would submit that the State amendment violates the main
objective and the basic structure of the Central Act. He would
also refer to the judgments of the Hon'ble Supreme Court in
Gram Panchayat of Village Jamalpur (supra), Grand
Kakatiya Hotel (supra) and that of Bombay High Court in
Basantlal Banarsilal (supra), to argue that while according
HCJ & DVSS, J
W.P.Nos.32956, 33034 of 2015;
-62- W.P.No.8639 of 2016 &
W.A.No.852 of 2016
Assent to the State amendment in a Central enactment, the
President should apply his mind. It is next argued by the
learned senior counsel that Section 1(3) of the A.P.
Amendment Act (Act No.22 of 2018) provides that
Amendment Act shall have effect notwithstanding anything
contained in any law or judgment or order of any court or
authority without affecting the vested rights. Therefore, the
accrued vested rights of the petitioners in terms of the Social
Impact Assessment Study and Food Security Issues, cannot
be taken away by Section 3 of the A.P. Amendment Act (Act
No.22 of 2018) and for the same reason, the provision does
not have a retrospective operation.
65. Learned Advocate General would submit, in counter to
the arguments raised by the learned senior counsel for the
petitioners, that there is no foundation in the writ petitions as
to on what grounds and on the basis of any particular
Constitutional defect the A.P. Amendment Act (Act No.22 of
2018) is unconstitutional. Such foundation is necessary in
view of the decisions of the Hon'ble Supreme Court in State
of Haryana v. State of Punjab (supra) and
J. Venkateswarlu v. Union of India (supra). Learned
HCJ & DVSS, J
W.P.Nos.32956, 33034 of 2015;
-63- W.P.No.8639 of 2016 &
W.A.No.852 of 2016
Advocate General would argue that Central Act as well as the
State amendment vide Act No.22 of 2018, are legislations in
the very same legislative field, i.e. Entry 42 of the Concurrent
List. Therefore, repugnancy is resolved by securing the
Assent of the Hon'ble President of India. It is further argued
that in the absence of foundational pleading in the writ
affidavits that the Assent of the Hon'ble President does not
satisfy the tests laid down by the Hon'ble Supreme Court in
the case of Kaiser-I-Hind Pvt. Ltd. (supra), a verbal
contention of the petitioners raised at the time of arguments
is factually without any substance and legally untenable. The
record of passing of the Act and the subsequent Assent by the
Hon'ble President clearly indicates application of mind. It is
also put forth that that similar legislations with same effect
including with retrospective date, have been upheld by the
Gujarat High Court in relation to Gujarat State Amendment
Act, 2016 in Jigarbhai Amritbhai Patel (supra); Karnataka
High Court in relation to Karnataka State Amendment Act,
2019 in S. Jalaja (supra) and the Supreme Court decision in
the matter of G. Mohan Rao (supra), dealing with Tamil
HCJ & DVSS, J
W.P.Nos.32956, 33034 of 2015;
-64- W.P.No.8639 of 2016 &
W.A.No.852 of 2016
Nadu Amendment to respective enactments exempting the
provisions of Act 30 of 2013.
66. Concededly, A.P. Amendment Act (Act No.22 of 2018)
has received the Assent of the Hon'ble President of India.
Therefore, provisions contained in the State Amendment Act
would prevail in the State, despite repugnancy, by virtue of
the provisions contained in Article 254(2) of the Constitution
of India. The legal principle is settled that the Assent of the
President should not be mechanical and that materials should
be placed before the Hon'ble President for consideration at the
time of according Assent; otherwise despite the Assent, the
repugnancy may be fatal for the said Act.
67. In Kaiser-I-Hind Pvt. Ltd. (supra), it is held that
Assent of the President envisaged under Article 254(2) of the
Constitution of India is neither an idle or empty formality, nor
an automatic event, necessitated or to be given for the mere
asking, in whatever form or manner and whether specific,
vague, general of indefinite - in the terms sought for.
The claim that once sought and obtained as well as published,
a curtain or veil is drawn, to preclude any probe or contention
for consideration that what was sought and obtained was not
HCJ & DVSS, J
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-65- W.P.No.8639 of 2016 &
W.A.No.852 of 2016
really what should and ought to have been, to claim the
protection envisaged under Clause (2) in respect of a
particular State law on the same subject made by the
Parliament, the President has to be apprised of the reasons at
least as to why is assent is being sought, the need or
necessity and the justification or otherwise for claiming
predominance for the State law concerned.
68. It is held by the Hon'ble Supreme Court in the above
decision that the Assent accorded by the President is not
justifiable and courts cannot spell out any infirmity in the
decision arrived at, to give the assent. It is also not given to
anyone to challenge the decision of the President according
Assent on merits and as to its legality, propriety or
desirability. It is also held that to uphold as valid the claim
for any such blanket assent or all-round predominance over
any and every such law -- whether brought to the notice of
the President or not, would amount to legitimization of what
was not even in the contemplation or consideration on the
basis of some assumed "consideration". In order to find out
the real state of affairs as to whether the "assent" in a given
case was after a due and proper application of mind and
HCJ & DVSS, J
W.P.Nos.32956, 33034 of 2015;
-66- W.P.No.8639 of 2016 &
W.A.No.852 of 2016
effective "consideration" as envisaged by the Constitution,
this Court as well as the High Court exercising powers of
judicial review are entitled to call for the relevant records and
look into the same.
69. The State has placed before us the record containing
the papers which were sent to the Hon'ble President of India
for obtaining the Assent as required under Article 254(2) of
the Constitution of India. The same is available in the
judgment compilation Volume III from pages 250 to 260. The
record contains copy of the Right to Fair Compensation and
Transparency in Land Acquisition, Rehabilitation and
Resettlement (Andhra Pradesh Amendment) Bill, 2017, as
also the Note for Circulation setting out the reasons as to why
the said Amendment Act is necessary. The following are the
contents of the Note for Circulation containing the reasons for
bringing out the said amendment:
"2. The Right to Fair Compensation and
Transparency in Land Acquisition, Rehabilitation and
Resettlement At, 2013 (Central Act, No.30 of 2013)
was enacted to provide for Land Acquisition in a
transparent manner, and just and fair compensation
to the land loosers/affected families whose lands
HCJ & DVSS, J
W.P.Nos.32956, 33034 of 2015;
-67- W.P.No.8639 of 2016 &
W.A.No.852 of 2016
have been acquired or proposed to be acquired,
including the acquisition of lands required for
important National Projects, Industries purpose and
other public purposes etc.,"
"3. While the Act contains certain innovative features
like Social Impact Assessment and Food Security,
Higher Compensation and Rehabilitation and
Resettlement award along with Land Acquisition
award etc., and to check in-discriminatory
acquisition of land of farmers and to provide proper
rehabilitation to affected families, at the same time,
the process of land acquisition specially for projects
requiring early completion in view of strategic
importance for development has become lengthy
and time consuming."
"4. The State of Andhra Pradesh aims to grow at a
very fast rate. For this purpose, with the help of
Government of India, various mega projects in the
sectors of infrastructure, communications,
constructions of National Highways, New Railway
Lines, Port facilities etc., have been sanctioned. All
these projects require that the land be made
available immediately, otherwise there will be high
escalation in the costs and also the benefits of
development will ..."
"However, the State of Andhra Pradesh has faced
difficulties in acquiring land under Act, No.30 of
HCJ & DVSS, J
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-68- W.P.No.8639 of 2016 &
W.A.No.852 of 2016
2013. In order to facilitate land acquisition for
various developmental projects in the State of
Andhra Pradesh, it is necessary to make certain
benefits to the owners of the land and the affected
families. Accordingly, to achieve the said purpose, it
is necessary to amend Act, 30 of 2013 for the State
of Andhra Pradesh."
70. Paragraph 9 of the note for circulation mentions the
Entries in the State and Concurrent Lists to the Seventh
Schedule, to which proposed legislation (State Amendment)
falls, with further statement that the LA Act, 2013 and earlier
law made by the Parliament being in operation, the Bill after it
is passed by the Legislature of the State, has been reserved
by the Governor for the consideration and Assent of the
President of India under Article 254(2) of the Constitution of
India.
71. The material papers sent to the Hon'ble President of
India for consideration clearly reveal the need for the State
Amendment to the Central Act, the reason for such enactment
and the requirement of obtaining Assent of the Hon'ble
President in view of the central legislation in operation in the
State. Thus, the test laid down by the Hon'ble Supreme Court
in the matter of Kaiser-I-Hind Pvt. Ltd. (supra) as to what
HCJ & DVSS, J
W.P.Nos.32956, 33034 of 2015;
-69- W.P.No.8639 of 2016 &
W.A.No.852 of 2016
is required for a consideration to be a valid exercise, for the
President of India before according Assent, is duly satisfied in
the present case. Once consideration by the Hon'ble
President is held to be proper in accordance with law, it is not
open for this Court to dwell on the merits of the legislation.
The Division Bench of Karnataka High Court has also upheld
the similar State Amendment in the matter of S. Jalaja
(supra).
72. In G. Mohan Rao (supra), the Hon'ble Supreme Court
was considering the validity of the State amendments made
to the LA Act, 2013, seeking to protect and preserve the State
Acts from the operation of the LA Act, 2013, as the Tamil
Nadu Legislature found its own legislations to be expedient.
The Tamil Nadu Government enacted Right to Fair
Compensation and Transparency in Land Acquisition,
Rehabilitation and Resettlement (Tamil Nadu Amendment)
Act, 2014 making the provisions of the LA Act, 2013,
inapplicable to acquisition of land under the three State
enactment. The retrospective date was chosen by the State
legislature with the objective to protect the acquisition under
the three State enactments from being rendered void due to
HCJ & DVSS, J
W.P.Nos.32956, 33034 of 2015;
-70- W.P.No.8639 of 2016 &
W.A.No.852 of 2016
repugnancy after coming into effect of the LA Act, 2013. The
Hon'ble Supreme Court considering the scope of judicial
review and the procedural requirement of obtaining Assent of
the Hon'ble President of India under Article 254(2) of the
Constitution of India, observed thus in paragraph 70:
"70. In the present case, the letter seeking assent
clearly demonstrates that the three State
enactments were made for the purpose of speedy
acquisitions. It further states that the law made by
the Parliament rendered the three enactments
repugnant and out of operation owing to the Madras
High Court judgment. It also states that the State
has considerable interest, having a strong bearing on
the public exchequer, in saving and reviving the
three State enactments. It also clearly specifies the
law made by the Parliament, which could be coming
in the way of the State enactments for due
consideration by the President. Suffice it to say that
the communication was in compliance with the
mandate of Article 254 as well as with the decision
of this Court in Kaiser-I-Hind Pvt. Ltd.49 We see no
reason to intervene on this ground."
73. Insofar as the validity of the retrospective operation of
the A.P. Amendment Act (Act No.22 of 2018) is concerned,
the same issue was considered by the Hon'ble Supreme Court
HCJ & DVSS, J
W.P.Nos.32956, 33034 of 2015;
-71- W.P.No.8639 of 2016 &
W.A.No.852 of 2016
in G. Mohan Rao (supra). The Hon'ble Supreme Court
observed thus in paragraphs 72, 73 and 75:
"72. The above understanding emanates from the
basic concept of retrospectivity. The primary
objective of retrospective application of a law is to
alter an undesirable past circumstance and it is
meant to apply to things which have already
happened. In Halsbury's Laws of England,
retrospectivity is defined as:
"921. Meaning of "retrospective". It has been said
that "retrospective" is somewhat ambiguous and
that a good deal of confusion has been caused by
the fact that it is used in more senses than one. In
general, however, the courts regard as retrospective
any statute which operates on cases or facts coming
into existence before its commencement in the
sense that it affects, even if for the future only, the
character or consequences of transactions previously
entered into or of other past conduct. Thus a statute
is not retrospective merely because it affects
existing rights; or is it retrospective merely because
a part of the requisites for its action is drawn from a
time antecedent to its passing."
"73. The underlying purpose of retrospectivity,
therefore, is to cure including validate certain
transactions of the past by making a law in the
present and not to compete with the laws existing in
HCJ & DVSS, J
W.P.Nos.32956, 33034 of 2015;
-72- W.P.No.8639 of 2016 &
W.A.No.852 of 2016
the past at that point of time. In this case, the
objective was to save and validate past acquisitions
under the three State enactments, which were valid
until the commencement of the 2013 Act but stood
quashed due to the High Court decision. This was
also for altering the basis of the law in existence at
that point of time and providing for benefits at par
with the 2013 Act, so far as it was fit in the wisdom
of the State legislature. No doubt, it may appear
anomalous to operationalise the 2019 Act from
26.09.2013, a day prior to the making of the 2013
Act, but it does not make any impact on the validity
thereof or its substance. The date has been chosen
by the State legislature only by way of abundant
caution and, in our view, rightly. It is obviously
relevant to overcome the repugnancy corresponding
to the commencement of the 2013 Act. Adopting any
other interpretation would not only be unwarranted
as per the constitutional scheme but would also
strike at the very purpose of a retrospective reviving
and validating enactment. More so, it would open a
pandora's box of unforeseen conflicts."
"75. In light of the aforesaid discussion, we hold the
2019 Act to be a legitimate legislative exercise and
find it to be consistent with and within the four
corners of Article 254 of the Constitution of India
and also of the High Court judgment."
HCJ & DVSS, J
W.P.Nos.32956, 33034 of 2015;
-73- W.P.No.8639 of 2016 &
W.A.No.852 of 2016
74. In view of the law laid down by the Hon'ble Supreme
Court in the aforesaid case, once there was active
consideration and application of mind by the Hon'ble President
of India by considering all relevant aspects of the matter which
were presented before the Hon'ble President of India at the
time of obtaining Assent, the Sate Amendment cannot be said
to be in violation of Article 254(2) of the Constitution of India,
nor the retrospectivity can be declared unconstitutional.
75. Before concluding, we must also notice that the total
area notified for acquisition is 2700 acres. The airport is
proposed to be developed in an area of 2200 acres and the
remaining 500 acres will be used for allied activities. An
amount of Rs.678 crore has already been paid to the
landowners and the land already in possession of the
Government is 2064 acres as against 2200 acres meant for
airport development. The total number of affected landowners
is 1959, out of which 1937 landowners have agreed for
consent awards which have since been passed. As stated
above, the State Government is already in possession of 2064
acres of land except 37.15 acres, which is surviving for
adjudication on merits in these cases. Although the writ
HCJ & DVSS, J
W.P.Nos.32956, 33034 of 2015;
-74- W.P.No.8639 of 2016 &
W.A.No.852 of 2016
petitions as filed earlier involved some more area, however,
during their pendency, all other petitioners except with regard
to 37.15 acres have received the compensation by consenting
to the award. Therefore, only a small patch of land in the
middle of the airport remains to be occupied by the
Government for development of the airport. Overwhelming
public interest is in favour of allowing construction activity at
the airport to begin soon and the same cannot be left in
suspended animation any further. It is not in public interest,
more so when there are no legal grounds, to interfere in these
cases.
76. Accordingly, all the writ petitions as well as the writ
appeal are dismissed. Interim orders shall stand vacated. No
order as to costs. Pending miscellaneous applications, if any,
shall stand closed.
Sd/- Sd/-
PRASHANT KUMAR MISHRA, CJ D.V.S.S. SOMAYAJULU, J
MRR
