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Nunna Keshava Rao & Others v/s State of Andhra Pradesh, Rep., by its Principal Secretary, Municipal Administration & Urban Development Department, Secretariat, Velagapudi, Amaravati & Others


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    W.P.No.5808 of 2020

    Decided On, 09 December 2020

    At, High Court of Andhra Pradesh

    By, THE HONOURABLE MR. JUSTICE D.V.S.S. SOMAYAJULU

    For the Petitioners: S. Satya Prasad, Senior Counsel for Balaji Medamalli, Advocate. For the Respondents: R1 & R3, G.P. for Municipal Administration, R2 & R4, G.P. for Panchayat Raj, R6, I. Koti Reddi, Advocate.



Judgment Text

TO URBANIZE OR NOT TO URBANIZE IS THE QUESTION FACING THESE “HAMLETS.”The petitioners before this Court are questioning the inclusion of their hamlets/villages in the Godavari Urban Development Authority.This writ petition itself is taken up for final hearing. This Court initially granted an interim order. The respondents-State filed its counters; vacate stay and wanted the matter heard on a priority.Accordingly, this Court has heard Sri S.Satya Prasad, learned senior counsel appearing for Sri Balaji Medamalli, learned counsel for petitioners, the Government Pleader for Municipal Administration representing respondent Nos.1 and 3 and Government Pleader for Panchayat Raj for respondent No.4 and Sri I.Koti Reddi representing the 6th respondent. The main arguments for the respondents were advanced by the Government Pleader for Municipal Administration and Sri I.Koti Reddi. They were supported by the Assistant Government Pleader for Panchayat Raj.PETITIONERS SUBMISSIONS:-The petition has been filed challenging the G.O.Ms.No.79 Municipal Administration and Urban Development (H1) Department dated 28.01.2020 by which a number of villages; and four Urban Local Bodies were included in the jurisdiction of respondent No.6. According to the petitioners, the G.O. was issued under a colorable exercise of power, by non-application of mind and is violative of the principles of natural justice. It is also challenged as being violative of the law and the constitutional provisions regarding Panchayat Raj etc.Sri S.Satya Prasad, learned senior counsel appearing for the petitioners, submitted that the villages and urban legal bodies which are now sought to be included into the Metropolitan Development Area under the 6th respondent are the most vital agricultural areas of the Godavari Delta in the State of Andhra Pradesh. He has spelt out in great detail the significant features of the delta and the natural flora and fauna of this area which is popularly known as ‘Konaseema’. Learned counsel highlighted the facts that the entire area is a very very fertile area situated as it is between the tributaries of the river Godavari which splits into branches before joining the ‘Bay of Bengal’. He pointed out that this area is a totally rural agrarian based economy with hardly any urbanization or scope for urbanization more particularly as defined under the A.P.Metropolitan Region and Urban Development Authorities Act, 2016 (herein after called as ‘the Act 5 of 2016’). Learned counsel drew the attention of this Court to his pleadings, wherein it is pleaded that these villages are not close to an urban area or an urban region. He points out that they are not within the urban agglomeration either and that they are spread all over the vast delta area of ‘Konaseema’. It is pointed out that the population concentration is very less. He argues that there is no likelihood of urbanization in the recent future. He also pointed out that the stake holders namely the villagers; Panchayats including the grama-sabhas, were never consulted before their villages were included within the jurisdiction of the 6th respondent. Learned counsel argues that the procedure required to be followed has not been followed at all. He states that there is non application of mind by the State and that the respondents did not even gather the required or proper data to decide whether the areas sought to be included would fit within the definition of “urban area”/”metropolitan area”. He argued that purely agrarian villages are sought to be included into the areas without considering the needed data as stipulated by the Act 5 of 2016 itself. Learned counsel also argued that the Act 5 of 2016 has overriding effect and takes away all the powers and duties of the local bodies. He also submits that this is contrary to the mandate of the Constitution of India as can be seen from the 73rd and 74th constitutional amendments which grant special privileges to the Panchayats. He also drew the sustenance from Article 40 of the Constitution and the Directive Principles of State Policy with regard to the Panchayats. The sum and substance of the argument of the Learned Senor Counsel is that the entire decision making process is vitiated and is not a genuine exercise of power. Learned Senior counsel urges that this Court must interfere and check the arbitrary exercise of power.RESPONDENTS SUBMISSIONS:-For the respondents, Government Pleader for Municipal Administration and Urban Development argued the matter first. He relied upon a counter affidavit filed on behalf of the first respondent. Learned Government Pleader highlighted the steps that were taken before the impugned order was passed. He points out that the action was strictly in accordance with the Act 5 of 2016. He states that in the 24 Mandals proposed for inclusion, the National or the State Highway passes through. Therefore, for the purpose of geographical continuity, the Mandals were added. He also points out that the entire population of these 24 Mandals is 10.54 lakhs as per the 2011 census and all these 24 Mandals have potential for urbanization. Learned Government Pleader also relied upon the various provisions of the Act 5 of 2016 to justify the inclusion. He points out that the Panchayats will be allowed to function as in the past and that the main purpose of the GUDA is only to secure sustained planning, financing, funding etc., in the development area. He reiterated that only the planning activities to ensure sustainable and good development will be looked after by the GUDA. The additional amounts/charges if any collected by the GUDA would be utilized for implementation of the master plan as described in para 10 of the counter affidavit. Apart from that, the learned counsel also states that there are 1973 un-authorized layouts in the GUDA region and that the inclusion of these areas will prevent such things from occurring. The locus of the petitioners is also questioned stating that they are real estate developers and that they are not concerned citizens. In line with what is stated in the counter, the learned Government Pleader reiterates that the inclusion is only for the planned development and for no other reason. He also relies upon the judgment of the Hon’ble Supreme Court of India reported in Bondu Ramaswamy v. Bangalore Development Authority (2010) 7 SCC 129) to argue that in similar circumstances, the activities of the Banglore Development Authority were upheld.Sri I.Koti Reddy, learned counsel for the 6th respondent also extensively argued the matter. He points out that the inclusion of the new areas is only to ensure geographical continuity and to have enough planned development in the ‘Konaseema area’. He points out that the Konaseema area will be developed as a tourism hub. He also points out that proposal has been submitted and requests have been received from various stake holders in the work shops conducted for preparation of the master plan from November, 2018 to February, 2019. Basing on the said representations from the 23 stake holders, proposals were forwarded to the Government for inclusion. He also submits that under the existing schemes, if the lands are included, atleast Rs 1.50 lakhs additional assistance would be received from the Government of India and this would facilitate construction of better houses. The learned standing counsel also argues that the existing Panchayats and rural bodies will be allowed to function as they are and that the inclusion of these areas is mainly for planned development by allocating of resources and preparation of a better plan for the future.Learned counsel also draw the attention to the penultimate unnumbered para and para 14 of the counter and states that 85% of the amount that is collected would be used for implementation of the master plan and the balance 15% will be used for administrative and other maintenance only. He also reiterates that the inclusion of these areas would make Konaseema into a tourism hub. Relying upon para 19, learned counsel highlights the works that have been carried on by the GUDA. He points out that the submissions of the learned senior counsel for the petitioners are not correct and that the existing economy or the flora and fauna of the Konaseema area will not be disturbed. He also therefore prays that the interim order granted by this Court should be immediately vacated and the writ petition should be dismissed. The Government Pleader for Panchayat Raj supported these arguments.COURT-This Court after hearing the learned counsel notices that the grievance of the petitioner is that the agrarian economy and the village culture/atmosphere should be preserved. It is their contention that the inclusion of these areas within the urban agglomeration is not correct and is contrary to the Act 5 of 2016 itself. On the other hand, both the counsel, who argued the matter at length for the respondents, argued that this inclusion of the villages and the four urban local bodies are necessary for the planed development of the Konaseema region.All the parties agree that the Konaseema region is the granary for the State of Andhra Pradesh. It is one of the most fertile areas for the entire Indian subcontinent since it is watered by the Godavari river which actually splits up and flows into the Bay of Bengal. An elaborate system of canals has also been dug throughout this area from the time of the British leading to a greater agrarian growth and prosperity of this area. The entire area is green and that it supports multiple crops is not denied. That it is the centre of the Telugu culture and lifestyle is not also exactly denied.It is also clear that the vires of the Act 5 of 2016 are not actually challenged. This was rightly pointed out by the learned counsel for the respondents. What is challenged is the G.O that has been issued by which four urban local bodies (extent 62.49 square metres) and 24 Mandals with 236 villages (measuring 1584.66 square kilometers) are included. The grievance is about the manner and method in which these urban local bodies and villages have been included.As the vires of the Act 5 of 2016 have not been challenged, this Court is also not proposing to go into the issues about the Constitutional Mandate, the 73rd and 74th amendments etc. However, this Court cannot lose sight of the fact that because of the 73rd and 74th amendments in the Constitution of India, part IX has been introduced into the Constitution of India. The Panchayats have been given special powers, special financial commission etc. In addition, in their elections, the interference of the Court is also limited. These issues are being highlighted because in the Indian scheme of Governance, the Panchayats and Grama-sabhas have been given a special place considering the fact that India lives in its villages. This was said by the father of the nation himself Sri Mohandas Karamchand Gandhi.Land is also a scarce commodity. With the growth of population, cultivable land is becoming scarcer and scarcer. Agricultural land is diminishing, while the population is steadily increasing. Despite efforts, at scientific cultivation, the majority of the farmers of this country rely upon the monsoon and the traditional methods of cultivation to grow the food crops. This is a factor which cannot be lost sight of either by the planners or by the rulers. The need to preserve the fertile agricultural land is a factor that cannot be forgotten. If we do so, the future will not forgive us. At the same time, the need to improve the lot of the farmers and the villages is also equally important. This balance must be kept in mind by the planners.Against this backdrop, this Court is proposing to examine the submissions/pleadings/documents to decide whether the notification that is impugned has been issued properly and is as per the Act 5 of 2016. The decision making process is being examined by this Court with the available material. The relevant sections/definitions are set out hereunder. The material filed will thereafter be examined to decide if the decision making process is correct or not.The Andhra Pradesh (Metropolitan Region and Urban Development Authorities) Act, 2016 (Act 5 of 2016), is the enactment under which the action has been taken.This Act 5 of 2016 is filed as a material paper. The following important sections are reproduced here:Section 2:-(9) ‘development area’ means the area or group of areas declared to be a development area under sub-section (1) section 3 of this Act;(28) ‘metropolitan area’ means an area having a population of a million or more, comprised in one or more districts and consisting of two or more Municipalities or Panchayats or other contiguous area or an urban agglomeration area with a population of million and above as per the Census of India, specified by public notification to be a metropolitan area;(30) ‘metropolitan region’ means the metropolitan area as whole and its primary commuter areas, typically formed around the metropolitan area proper with a large concentration of people or a region as notified by the Government;(36) ‘periphery area’ means the outer area of the development area declared as such under section 13 of this Act;(46) ‘urban area’ means(a) the area comprised within the Municipal Corporation constituted under the respective Act or within the Municipality or a Nagar Panchayat constituted under the Andhra Pradesh Municipalities Act, 1965 and any such area in the vicinity as the Government may, having regard to the extent of, and the scope for the urbanization of that area or other relevant considerations, specify in this behalf by notification or an area specified as urban as per the Census of India; and(b) such other area as the Government may, by notification, declare to be an urban area, which in the opinion of the Government, is likely to be urbanized;(47) ‘urban region’ means the urban area as whole and the surrounding urban and rural areas and also the primary commuter areas typically formed around the urban area proper with a large concentration of people or a region as notified by the Government;3. Declaration of Development Area and Constitution of the Authority –(1) As soon as may be, after the commencement of this Act, the State Government may, by notification in the Andhra Pradesh Gazette declare the ‘Development Area’ consisting of such metropolitan region or urban region as a ‘development area’ for the purposes of this Act with effect from such date as may be specified therein.(2) Every such notification shall define the limits of the development area to which it relates.(3) The State Government may, by notification, in the Andhra Pradesh Gazette and in accordance with such rules as may be made in this behalf,-- (a) exclude from the development area any area comprised therein; or (b) include in the development area any other area.(4) The existing Gram Panchayats, Municipalities and Corporations within the Development Area shall remain functional within their respective jurisdictions based on the prevailing rules, made under the respective laws.Section 114 –(1) Notwithstanding anything contained in the Andhra Pradesh Town Planning Act, 1920 (Act.No.7 of 1920) or the Andhra Pradesh Municipalities Act, 1965, (Act. No. 6 0f 1965) or the Andhra Pradesh Urban Areas (Development) Act, 1975 (Act.No.1 of 1975) or Visakhapatnam Municipal Corporation Act, 1979 (Act. No. 19 of 1979) or Vijayawada Municipal Corporation Act, 1981 (Act. No. 23 of 1981) or Andhra Pradesh Municipal Corporations Act, 1994; (Act. No. 25 of 1994) the Andhra Pradesh Panchayat Raj Act, 1994 (Act. No. 13 of 1994) or any other law, the provisions of the Act shall have an over-riding effect over all such laws.Apart from these Sections, the Preamble of the Act 5 of 2016 defining its purpose is as follows:PreambleAn Act to revise the law relating to the regulation of rent and to balance the rights and duties of landlords and tenants to residential and non- residential premises in the urban and other areas and to provide for quick resolution of disputes and matters connected therewith or incidental thereto.The development that is envisaged by this Act is defined in section 2(8) of the Act 5 of 2016.This Court is, therefore, proposing to go in to the manner in which the power was exercised. Section 3(1) of the Act 5 of 2016 states that the Government may by notification declare a development area consisting of such Metropolitan Region or Urban Region as development area. The notification dated 28.01.2020 issued under this section is impugned.If the definitions are broken down into their constituent parts and interpreted they would be as follows:(a) Metropolitan area is defined as 1) an area having a population of one million or more 2) comprised in one or more Districts and consisting of two or more Municipalities or Panchayats or other contiguous area or an urban agglomeration is an area with a population of a million and more as per the census of India specified by a public notification to be a Metropolitan area.(b) A Metropolitan Region means, the Metropolitan area as a whole and its primary commuter areas, typically formed around the Metropolitan Area with a large concentration of people or a region as notified by the Government.(c) An Urban area means, the area within a Municipal Corporation within a Municipality or a Nagara Panchayat or such other area in the vicinity which the Government may having regard to the extent of urbanization and scope for urbanization or other relevant considerations specified by a notification or an area specified as an urban area by census of India and an area the Government may by notification declared to be an urban area.(d) Urban Region means, an urban area as a whole and the surrounding urban and rural areas and its primary commuter areas typically formed around the urban area with a large concentration of people.(e) The Metropolitan region means the Metropolitan area as a whole and its immediate primary commuter areas formed around the Metropolitan area, which have a large concentration of people.(f) A Metropolitan area (which is smaller by definition than a Metropolitan region) is an area having a population of a million and more (either in one or more Districts, two or Municipalities or Panchayats) or other contiguous area.Therefore, the first part of this definition of a Metropolitan area is an area having a population a million or more people in one or more Districts and consisting of two or more Municipalities or Panchayats/Districts and consisting of two or more Municipalities or Panchayats or other contiguous area.The second half of this definition states that a Metropolitan area is an urban agglomeration with a population of a million and above as per the census of India specified by a public notice as a Metropolitan area.So a metropolitan area must have a population of a million or more be located comprised in one or more districts, AND consisting of two or more municipalities/panchayats OR OTHER CONTIGUOS AREA; or an area with a population of a million or more as per the CENSUS OF INDIA.An Urban area also means an area within the Municipal Corporation, Municipality or Nagara Panchayat and an area in THE VICINITY OF THE SAME, which the Government may having regard to the existing urbanization and scope for urbanization be notified as an urban area.Therefore, if section 3(1) of the Act 5 of 2016 is looked into it can be seen that a development area should consist of a Metropolitan region or an Urban area. The Metropolitan region means the metropolitan area as a whole AND its PRIMARY COMMUTER AREAS TYPICALLY FORMED around the Metropolitan area with a large concentration of people. The use of the conjunction ‘AND’ is very significant here. It cannot be ignored. A Metropolitan area should consist of an area having a population of a million or more people in one or more Districts AND consisting of two or more Municipalities/Panchayats or other “contiguous” area. It can also mean an urban agglomeration with a population of one million or more. An agglomeration is a collection of things. Therefore, if the definition of Metropolitan area and Metropolitan region are analysed, it is clear that the Metropolitan area should have a population of a million or more people in a “contiguous area” consisting of two or more Municipalities, Panchayats etc. It can also be an urban agglomeration with a population of one million and above. A Metropolitan region means the Metropolitan area discussed above and its “primary commuter areas” formed around the Metropolitan area typically with a large concentration of people. In the opinion of this Court, the usage of the words contiguous area; primary commuter area and ‘typically’ makes it clear that they are used with a clear purpose and with a clear nexus/connection to urbanization and a large population.The Urban area means an area within the Municipal Corporation, Municipality, Nagara Panchayat and such other areas in the vicinity which the Government may having regard to the “extent of urbanization and the scope for urbanization” declares as urban. Therefore, an urban area means an area within the Corporation, Municipality, Panchayat and areas in the vicinity of such Corporations etc., which must have either extensive urbanization or the scope for urbanization. This also leads to the conclusion that all the areas should be ‘contiguous’ or in the vicinity with the scope for urbanization or having existing urbanization. Even the definition of urban region strengthens this conclusion, because it includes the urban area and the surrounding urban rural areas along the primary commuter areas formed around the urban area with a large concentration of people.A reading of these definitions of Metropolitan region or urban region makes it clear that there should be an area:(a) with a population of a million or more people;(b) located in Contiguous areas or area in the vicinity;(c) areas around the primary urban areas or Metropolitan areas from where people commute;(d) there should be extensive urbanization or the scope for urbanization in the near future.Section 138 of the Act 5 of 2016 states that the ‘periphery areas’ should also be outer areas adjacent to the development area. Thus the periphery area should be ‘adjacent’ to the development area.Thus, if all these definitions are looked carefully, it is clear that before the notification has issued, the Government must be satisfied that there is an area (1) with a population of one or more million people; (2) the area should be contiguous or in the vicinity and it can be into two or more Municipalities or Panchayats. (3) the areas should be found along the Metropolitan area with a large concentration of people and lastly, (4) there should be existing urbanization or likelihood of quick and imminent urbanization. These are the factors, which should be present before a notification is issued.The notification that is issued deals with the GUDA, whose headquarter is in Kakinada. Neither in the counter affidavit nor during the course of the submissions, was anything clearly submitted about the population of these four urban local bodies or the population of these 236 villages and their contiguous location more so in relation to the various definitions. It is not mentioned that these 236 villages are situated next to an urban area to be called either a commuter area or urbanized areas. The extent of urbanization or the likelihood of urbanization is not spelt out. The words “in the opinion of the Government is likely to be urbanized” in Section 2(46) (b) are words of specific import. This opinion of the Government about the likelihood of urbanization should be formed after an intense application of mind based on relevant material leading to an irresistible or inescapable conclusion about the likely urbanization. The law is well settled on this and held not be repeated. The opinion is to be based on cogent material.The counter affidavit of the first respondent states that in all these 24 Mandals, the population is 10,54,027. The breakup of this population is not clearly specified. Apart from that, this Court notices that the requirement of population of one million or more is only found in section 2(28) defining Metropolitan area. The two basic prerequisites are (1) the population of a million or more should be situated in one more Districts, (2) in one more Municipalities or Panchayats or other contiguous area. The usage of the ‘contiguous area’ cannot be lost sight of. The contiguity of all these 236 villages with an area having a population of more than one million is not at all clear. In addition, population of one million or more is also specified for an urban agglomeration. Admittedly, the 24 Mandals, which are dealt with in para 6 of the counter affidavit are not an urban agglomeration. The respondent-State had a duty to spell out that these 24 Mandals wherein the population is about 10.54 lakhs or 1.540 million are contiguous and have all the other pre-requisites to be included in the notification.Apart from this, when the petitioner has come on record and stated that there is virtually no urbanization in these areas, the respondent-State has not spelt out how these areas can be called as an urban area to be included in the notification. Neither the extent of the urbanization nor the scope of urbanization or other details are spelt out in the counter affidavit.A reading of the Act 5 of 2016 shows that the purpose for which this Act has been enacted is for “development”. The word ‘development’ has been defined in section 2(8) as follows:(8) ‘development’ with its grammatical variations means the carrying out of building, engineering, mining or other operations in, on, over, or under, land or the making of any material change, in any building or land or both, or in the use of any building or land or any material or structural change in any heritage building or its precinct, and includes demolition of any existing building, structure or erection and redevelopment, reclamation of land, conservation of environment, forming of layouts and sub-division of any land into plots, and development of amenities and the words “to develop” shall be construed accordingly;”The Preamble to the Act 5 of 2016 sets out its purpose as an Act to provide for establishment of Metropolitan region and Urban Development Authorities. Therefore, it is clear that the main purpose of the Act is to secure the development of this Urban and Metropolitan areas essentially. The Preamble serves as a useful guide to understand the mind of the law makers; and it gives a direction to the Act. It is for this reason that this Court holds that the (a) “contiguous” nature of the area is highlighted in more than one place in the Act. (b) areas having a population of a million and more must be situated in contiguous areas. (c) Metropolitan region talks about the Metropolitan area and its primary commuter areas typically formed around the Metropolitan area with a large population of people. (d) urban area as defined in section 2(46) of the Act 5 of 2016 talks of an urban area and any such area “in the vicinity”. (e) section 2(47) of the Act 5 of 2016 talks of the urban area and the “surrounding urban/rural areas” and also primary commuter areas “typically formed around the urban area” with a large concentration of people.If the purpose of the Act 5 of 2016 is analyzed, vis-a-vis its definitions, it is clear that before an area is declared as an urban area or a Metropolitan area, the above conditions should be satisfied. Despite the petitioner coming to the Court with a specific case that a wholly agrarian economy based in the rustic villages is being urbanized, absolutely no data whatsoever has been placed by the State to justify the inclusion of these 236 villages and four urban local bodies within the areas. Neither the geographical distances nor the population details or the urbanization details are furnished.The counter filed by the 6th respondent contains a letter dated 27.09.2019 addressed by the 6th respondent to the State. This letter contains what is called a detailed proposal. It formed the basis for the impugned order. Sub-para ‘E’ deals with the impugned proposal and furnishes some details. The vital statistics of the Godavari Urban Development Area (GUDA) are given, which shows that in the entire East Godavari District, the percentage of Urban population is 21.69 only. Therefore, it is clear that the balance 78.31% of the District comprises of rural population only. Even the details of the Municipalities and rural settlements to be covered in the GUDA are filed at page 147 of the material papers. The statistics or figures as required by section 2(28) or section 2(32) or 2(46)/47 are not disclosed. Even the maps filed do not support the case of the petitioner. The only reasons that are given for the National Highway or State Highway are passing through the area and for administrative convenience or to ensure geographical contiguity. In the opinion of this Court, in view of the specific provisions of the Act 5 of 2016, these are not valid reasons for exercising the discretion by the State. Administrative convenience/passing of the Highway/geographical continuity (by itself) are not grounds to include the area. Once the statute prescribes a method for performing an action it must be done in that method or not at all. This is the well-known ‘Taylor Principle’ approved in judgments like Babu Verghese and Ors. v. Bar Council of Kerala (1993 (3) SCC 422).Before the State exercises any such power to include the areas under the 6th respondent, it should carry out a careful exercise of (a) the population (b) of the geographical contiguity and (c) other reasons like urbanization as stipulated in the Act 5 of 2016 and then only it can issue an appropriate notification. This was not done. This Court finds from a reading of the various definitions of the Act 5 of 2016 that it provides for certain stringent parameters to be met before a notification is issued for including areas in the jurisdiction of the 6th respondent. In the opinion of this Court, such an exercise has not been carried out before the decision was taken.The evils of rampant urbanization are clearly visible in our country. There is a compelling need to protect the rural environment and to protect the farmer, who is the backbone of our economy. The reasons highlighted by the learned counsels for respondent cannot be accepted. Merely stating that there are a large number of illegal layouts will not suffice. Kakinada and Rajahmundry are two Municipal Corporations located in this area. How many of these illegal layouts are in urban areas and how many are in the rural areas is not clear. Nothing is spelt out. Otherwise also this Court is of the opinion that if there are illegal layouts, there are existing laws and regulations which can be used to curtail the same. On the ground that illegal layouts are there, the inclusion of these 236 villagers is not correct. The reading of the Act 5 of 2016 shows that it is meant to protect and improve the urban infrastructure both existing and the future. While this objective is laudable, it does not mean that GUDA can extend its area of its operation into the agrarian heart of State of Andhra Pradesh without carrying out the needed exercise as per Act 5 of 2016.Natural Justice:There is also the issue of natural justice and the lack of consultation with the actual stakeholders/the villages. The counter affidavits show that consultation meetings were held with 23 types of stakeholders in between November, 2018 to February, 2019. None of these groups is a group or a representative of the farmers/villages/grama sabhas etc. As per the settled law, before any order having civil consequences is passed the rule of audi alteram partem should be complied with; both in letter and in spirit. This was not done. The Hon’ble Supreme Court of India in the case of Baldev Singh and Ors. v. State of Himachal Pradesh and Ors. (1987 (2) SCC 510) noticed two earlier judgments of the Supreme Court in S.L. Kapoor v. Jagmohan and Ors. (1980 (4) SCC 379) and State of Orissa vs. Sridhar Kumar Mallik and Ors (1985 (3) SCC 697) and still held as follows:“It is a fact that the Orissa Act provides in clear terms a right of hearing whereas Section 256 of the Himachal Act makes no such provision but the settled position in law is that where exercise of a power results in civil consequences to citizens, unless the statute specifically rules out the application of natural justice, the rules of natural justice would apply. We accept the submission on behalf of the appellants that before the notified area was constituted in terms of Section 256 of the Act, the people of the locality should have been afforded an opportunity of being heard and the administrative decision by the State Government should have been taken after considering the views of the residents. Denial of such opportunity is not in consonance with the scheme of the Rule of law governing our society. We must clarify that the hearing contemplated is not required to be oral and can be by inviting objections and dispos

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ing them of in a fair way. (emphasis supplied)6. Mr. Thakur for a State advanced an argument that a few interested people were trying to resist the move of the State to constitute the notified area. Once we have held that the requirements of natural justice have not been fulfilled, it is not for us to examine whether the petition before the High Court was the outcome of efforts confined to a small group of the inhabitants of the area. At any rate there is no clear material before us also to support of Mr. Thakur's stand.”In view of this clear pronouncement of the Hon’ble Supreme Court in a case involving the constitution of a notified area, this Court also has to hold that on the ground of the failure of the rules of natural justice also the impugned notification has to be set aside.Even in the case cited by the learned Government Pleader for Municipal Administration in Bondu Ramaswamy’s case (2 supra), the Hon’ble Supreme Court pointed out the need for planned contiguous large scale development in a systematic manner. Seven questions were raised and answered in this case. Irregularities/arbitrariness was found in the acquisition/deletion of certain lands also. Thereafter, the directions in para 160 (conclusion) were issued.This Court, therefore, has no hesitation to hold that the G.O.Ms.No.79, dated 28.01.2020, which is impugned in the writ petition has to be set aside and accordingly the same is set aside. It is open to the State to take fresh action if it so desires but only by scrupulously following Act 5 of 2016 and its provisions. The caution and the way forward is suggested in Karnataka Industrial Areas Development Board v. C. Kenchappa and Ors. (2006 (6) SCC 371) (at para 50) by relying on an earlier decision as follows:50. The Court in the said judgment also observed that: (Essar Oil Ltd., v. Halar Utkarsh Samiti (2004) 2 SCC 392)"27. This, therefore, is the aim, namely, to balance economic and social needs on the one hand with environmental considerations on the other. But in a sense all development is an environmental threat. Indeed, the very existence of humanity and the rapid increase in the population together with consequential demands to sustain the population has resulted in the concreting of open lands, cutting down of forests, the filling up of lakes and pollution of water resources and the very air which we breathe. However, there need not necessarily be a deadlock between development on the one hand and the environment on the other. The objective of all laws on environment should be to create harmony between the two since neither one can be sacrificed at the altar of the other."If the State wishes to tread this path; it should note what was said in para 9 of Samatha v. State of A.P. and Others (1997) 8 SCC 191):9. Agriculture is the main part of the economy and source of livelihood to the rural Indians and a source and succor for social status and a base for dignity of person. Land is a tangible product and sustaining asset to the agriculturists. In Waman Rao v. Union of India [1981] 2 SCR 1, a Constitution Bench had observed that India being a predominantly agricultural society, there is a "strong linkage between the land and the person's status in social system." The strip of land on which they till and live assures them equal justice and "dignity of their person by providing to them a near decent means of livelihood." Agricultural land is the foundation for a sense of security and freedom from fear. Assured possession is a lasting source for peace and prosperity.With the above observations, the writ petition is allowed. No order as to costs.As a sequel, the miscellaneous petitions if any shall stand dismissed.
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