'Can High Court Become Town Planner?" : Supreme Court Stays AP HC Direction To Develop Amaravati Capital City Within Six Months' Time
In the plea pertaining to the Andhra-Pradesh Three Capitals row, the Supreme Court, on Monday, stays certain time-bound directions passed by the Andhra Pradesh High Court, including the one directing the State to construct and develop Amaravati capital city and capital region within six months time.
The directions of the High Court that a Bench comprising Justices K.M. Joseph and B.V. Nagarathna has categorically stayed till the next date of hearing are as under -
- The State and APCRDA are directed to complete the process of development and infrastructure in the Amaravati Capital City and Region providing basic amenities like roads, drinking water, drainage, electricity in terms of Section58 of APCRDA Act read with Rule 12(6) of Land Pooling Rules, 2015 within one month from the date of this order.
- The State and APCRDA are directed to complete the Town Planning Schemes as per Section 61 of APCRDA Act.
- The State is directed to construct and develop Amaravati capital city and capital region within six months time, as agreed in the terms and conditions of Development Agreement-cumIrrevocable General Power of Attorney in Form 9.14, provisions of APCRDA Act and Land Pooling Rules, The State is directed to construct and develop Amaravati capital city and capital region within six months time, as agreed in the terms and conditions of Development Agreement-cumIrrevocable General Power of Attorney in Form 9.14, provisions of APCRDA Act and Land Pooling Rules, 2015.
- The State and APCRDA shall develop the reconstituted plots belonging to land owners in Amaravati capital region by providing approach roads, drinking water, electricity connection to each plot, drainage etc. to enable the same to be fit for habitation in the Amaravati Capital city.
- The State and APCRDA are further directed to deliver/hand over the developed reconstituted plots in Amaravati capital region, on ground, to the land holders who surrendered their land as promised by the State, within three months from the date of this order.
The Bench issued notice in the petition filed by the State and connected petitions and directed that the process of serving of notice to be completed by the last week of December. The Bench has decided to hear the matter next on 31st January, 2023.
As the Bench was inclined to grant stay on some of directions of the Andhra Pradesh High Court noting that it sets out unrealistic time-lines, Senior Advocate Mr. Shyam Divan, appearing for a society of farmers, vehemently opposed the grant of interim stay. He submitted that in the alternative it can be indicated that no contempt proceedings would be initiated based on the time-lines laid down by the High Court and in the interregnum, the State Government is to submit an affidavit before the Apex Court stating the realistic time-line.
Questioning the workability of the time-line as mentioned in the High Court order, Justice Joseph stated -
"Direction 5 is completely unacceptable, that you develop the capital city in 6 months…What do you mean by capital city?"
Justice Nagarathna also remarked, "What kind of directions have the High Court passed. Can the High Court become a town planner and a chief engineer? The Court has no expertise in such matters, therefore we do not interfere. Without expertise…the High Court wants an entire city to come up in two months."
Justice Nagarathna was also of the opinion that the ruling of the High Court was in the nature of an advance ruling, wherein in the absence of any legislation, the High Court went ahead and decided on legislative competence to enact the legislation.
"Can there be advance ruling in legislative competence in the absence of an Act?...There is no legislation."
At the outset, Senior Advocate, Mr. K.K. Venugopal, appearing for the State, pointed out that since the Act, which indicates three capital cities have been repealed, nothing really survives in the matter.
Justice Joseph was curious about the rights of the farmers who had pooled-in their land on the promise that the capital city would be developed in Amravati. He was of the opinion that the prayers regarding promissory estoppel, statutory contract entered between the farmers and the State might survive.
"I think some things survive. There were prayers w.r.t promissory estoppel by farmers etc."
Mr. Venugopal submitted that even when the Act has been repealed, if the Court still goes on and decides on the legislative competence on the basis of apprehension of trifurcation then it would be interfering with the powers of the legislature. He added -
"Now the High Court could not have directed the legislature to pass a law in a particular manner, nor could they have directed the legislature not to pass an order. This is in the realm of separation of powers."
He argued that deciding the issue of legislative competence in the absence of any legislation is purely academic in nature and ought not to be entertained.
"Once an Act is repealed you have to have patience to wait and see what the legislature would do. And then if the legislature passes a law again, then its validity can be considered. But all of it was considered when there was no law in existence. And in the air and vacuum issue after issue was taken up and decided. This is something very strange. Courts cannot go into purely academic issues. This was a pure academic issue."
He further submitted that the concept of capital city is not provided in the Constitution. There is no specific Entry in Schedule 7 of the Constitution that deals with establishing a capital city. Capital only means a seat from where the government functions in any of its three branches. So far as the judiciary is concerned the Constitution specifically says that the President shall decide as to where its seat shall be. However, he emphasised that for executive matters, it is purely an issue of governance and it would not be open for the High Court to either conclude that it does not have the legislative competence or direct the restoration of the capital to Amravati. Mr. Venugopal further emphasised -
"The High Court took up the power it does not possess. It issued a continuous mandamus. It said that within one month you do this, an impossible task."
Justice Joseph noted, "You made a lot of investments in Amravati. Partly, the High Court building has come up there. Now you are proposing the High Court at Kannur."
Mr. Venugopal responded, "Now all that is gone."
Justice Joseph was of the view that when there is a reasonable apprehension of threat to fundamental rights courts might interfere and the direction of the High Court might have come from a place of apprehension.
Justice Joseph enquired, "Where do you want to locate the High Court?"
Mr. Venugopal responded, "The High Court ought to be located at Amravati."
Not satisfied with the nature of directions passed by the High Court, Justice Nagarathna remarked, "Is there no separation of power in Andhra Pradesh. Why is the High Court acting as the executive?"
She added -
"Rather than concentrating everything in one place, it is better to have more urban centres. It is for the State to decide…and the High Court has overstepped…it cannot be the executive."
Mr. Venugopal implored the Bench to consider that the State Government cannot go ahead with the continuing mandamus.
Justice Joseph enquired about the rights of the 29000 farmers who had given up their lands in hope of development.
"What happens to these farmers and their rights and the statutory contracts?"
Another Counsel for the State Government elucidated on the issue of the rights of the farmers and asserted that the State Government will fulfill what they had promised with respect to developing the land that has been pooled-in by the farmers, the only constraint being the unrealistic time-lines.
"Amravati was not removed as the Capital. It would remain as one of the three centres of power. Layout was to be developed, land-pooling scheme was to be given effect to, there was an enhancement of the annuity which was contemplated under the original Act; the length of time was increased. The farmers are not affected. The High Court had said that they had pooled their land on the promise that there would be a singular capital city there. In essence it said that the farmers have a indefeasible right that the capital city cannot be moved from Amravati…The land that has been given for land pooling in terms of the master plan it would be developed."
Thereafter, the Bench made some enquiries with respect to the functioning of the Andhra Pradesh High Court.
Justice Joseph enquired, "What about the High Court?"
The Counsel responded, "As on today it is functioning in Amravati."
Justice Joseph asked the State Counsel, "What is the amount spent on the High Court?"
The Counsel submitted, "It is only a temporary High Court...1500 crore was allocated, 160/116 crore has been spent."
J. Nagarathna pointed out that it appears that there is no canteen at the High Court and as an outcome the members of the Bar and Bench have return home in the afternoon. She reckoned that all the amenities should be made available at the High Court premises throughout the day, so that the Courts are not constainted to rise by afternoon.
The State Counsel apprised the Bench that the State Government is aggrieved by the time-lines more than the substance of the directions issued by the High Court.
Mr. Venugopal argued, "Is it not open to the State executive under the federal structure to change the capital from time to time, or is that restricted as the High Court has directed."
J. Joseph identified two issues that the Apex Court has to primarily deal with. One is the issue pertaining to legislative power and the other was the issue pertaining to the farmers.
Initially, Mr. Venugopal has sought a stay on the finding of the High Court that the Central Govt alone can decide on the capital of a State. But, the Bench was not inclined to grant the same as it would require the matter to be finally heard.
Mr. Venugopal submitted that the High Court erred in reaching the conclusion that the source of power is Article 4 of the Constitution and therefore only the Central Government has the legislative competence to decide on the issue of the State capital. It was argued that power under A. 4 is a one time power exercised at the time a new State is formed.
Curious, Justice Joseph inquired, "What is the source of your legislative power?"
He noted, "Executive power is co-extensive with legislative power, so first you ought to have legislative power."
Mr. Venugopal responded -
"The concept of capital is not in the Constitution. There are things that are not traceable to any specific Entry. Part of Governance in a federal state is permitted to be decided by executive orders. The legislation can always step in where the executive can exercise power."
He added -
"It is a fallacy that Article 4 is the source of power wherever a capital is to be established. At the time you create a state you have to decide on the constitutional matters…Are we tying the hands of the State saying that you have to show an entry for everyday acts of the State, which would be contrary to executive power."
As Justice Joseph refers to A. 162 of the Constitution, which contemplates extent of executive power of a State, Mr. Venugopal submitted -
"A. 162 says that executive power is coextensive with its legislature power. It does not say this and no more."
Justice Joseph enquired, "Can you amend the State Reorganisation Act with your legislative power?"
Mr. Venugopal submitted, "No, I can't. Because that is an Entry."
Justice Joseph emphasised that the State cannot indeed amend the Reorganization Act because there is a specific provision giving power to the Parliament to do the same.
Senior Advocate, Mr. Fali S. Nariman opposing the stand of the State Government argued that one ought to look into the Parliamentary Act first and if it states that a particular palace ought to be the capital, then the State has no competence to change the same.
Justice Joseph pointed out, "But, it does not say that the capital should be at Amravati."
Mr. Nariman highlighted the provision of the Re-organisation Act, which states that initially Hyderabad would serve as a common capital and then the Cntral Government would constitute a Committee to conduct study and decide on an alternative capital for Andhra Pradesh.
Justice Joseph reiterated, "It does not say that the capital shall be at a particular place. We cannot bind a sovereign State that, it has to be developed in a particular area."
Mr. Nariman argued that if the Parliament says there ought to be one capital, there cannot be three capitals.
Justice Joseph reckoned, "The State is to be able to decide where the capital ought to be."
Mr. Nariman argued, "The Executive committee of the Central Government is to decide as per the Parliamentary Act."
Senior Counsel appearing on behalf of the State referred to Entry 35 of the State List and Entry 20 of Concurrent list to indicate that the State legislature is competent to make laws pertaining to town and country planning in the State.
Senior Advocate, Mr. Shyam Divan appearing on behalf of a society of farmers argued that the farmers were asked to pool their lands and assurance was given that it would benefit them tremendously.
"It was not possible to construct a new city given the cost. A promise and assurance was given by the State. State met villages and samitis and said that it is a tremendous opportunity to pool your lands and you will get ample benefits. It is more than 29000 farmers and their families as well. Your lordships know about the attachment the farmers have with the land...the land was to be pooled for benefit for not only the State but also for farmers…"
He argued that they were promised that the development land would be made available by 2020, but from May, 2019, the process of building infrastructure has been abandoned by the State Government.
"Nothing was left after they gave up their land. The lands were very productive. The statistics are there...From May 2019 all this has been abandoned. For the last 3 years nothing has been happening on the ground….It is a huge national commitment to come up with the capital. Kindly have a look at the photographs. This is the High Court premise. All abandoned....No facilities of any sought, no schools provided, no roads yet....They were to complete all of this as per their mission statement and commitment in 2020."
On the legal issue, he submitted that the State lacked competence to shift administrative blocks of governance by executive orders.
"What the State said was that my executive power is co-extensive with my legislative power. Now they said that even if we do not have legislative authority we can do it by executive orders. By shifting the administrative blocks you are sapping a city."
He expressed his views, that if the time-lines were thought to be unrealistic that the State Government shall go back to the High Court and provide a more realistic timeline. In the process they ought to also explain why the infrastructural development were abandoned after May, 2019.
Justice Joseph asked Mr. Divan, "What do you mean by a capital city in law ?"
Mr. Divan responded, "Primary seat of governance."
The Judge further asked, "Are these all to be mandatorily located in the particular area? Are these matters of law?"
Justice Nagarathna also stated, "It cannot be a subject matter of a constitutional court to issue mandamus like that. Then why do we have representatives, why do we have a Cabinet?"
Mr Divan submitted that unlike the other Re-organisation Schemes, the one in question has a provision for capital.
Justice Joseph noted that the Government's point of view was that they can have a Secretariat or part of it in a place other than the 'capital' for administrative convenience.
Mr. Divan indicated that the argument might not hold in the facts of the present case when the Committee constituted in this regard had suggested that decentralisation is better in terms of cost. But the State Government had then decided to have one capital and accordingly went ahead with the land pooling exercise, they decided to have one capital.
Case Title : State of Andhra Pradesh versus Rajadhnani Rythu Parirakshnana Samithi SLP(C) No. 18823-18884/2022