Top court stays Andhra HC order on Amaravati

New Delhi: “Courts are not governments,” said the Supreme Court on Monday as it stayed a judgment of Andhra Pradesh high court that Amaravati is the only capital of the state and directed the government to develop it within a period of six months.

The top court also observed that the high court cannot be a “town planner” or an “engineer” to direct the government to build the capital in six months and that it had “overstepped its limit” in the matter.

A bench of justices KM Joseph and BV Nagarathna made the remarks while hearing an appeal filed by the Andhra Pradesh government, challenging the March 3 order of the high court that required the state to develop Amaravati as the capital city within six months and completing infrastructure development like roads, drainage and electricity and drinking water supply in the Amaravati Capital City and Region within one month.

“Is there no separation of powers in the state of Andhra Pradesh? How can the high court begin acting as an executive?” the bench asked while referring to the high court’s directives.

“What kind of directions are these? Can the high court become a town planner and chief engineer. Without any expertise, the high court is saying do this in one month, do this in six months. Can the high court assume such administrative roles? Courts are not governments,” it added, as it issued notices to the original petitioners in the high court against the state government’s plans for three capitals and the Centre and posted the matter for hearing on January 31.

Also read: Andhra CM's sister, YS Sharmila, taken into custody by Telangana police

The Andhra Pradesh government had decided to make three capitals in different cities – through the Andhra Pradesh Capital Region Development Authority Repeal Act, 2020 and the Andhra Pradesh Decentralisation and Inclusive Development of All Regions Act, 2020 – to ensure development in all parts of the state. However, the high court in March ruled that Amaravati is the only capital city of the state and passed a slew of directives to the state government.

The high court had passed its 307-page verdict on a batch of 63 writ petitions filed by aggrieved farmers of Amaravati region against the state government’s decision to make Visakhapatnam the executive capital, Kurnool the judiciary capital and Amaravati as the legislative capital of Andhra Pradesh. The petitioner landowners had challenged the two Acts by which the state wanted to change Amaravati as the capital.

A three-judge bench of the high court comprising chief justice Prasanth Kumar Mishra and justices M Satyanarayana Murthy and DVSS Somayajulu ruled that the state government had no “legislative competence” to change or remove Amaravati as the capital of the three civic wings.

On September 17, the state government moved the top court against the high court order. “To hold that the state does not have the power to decide on its capital is violative of the basic structure of the Constitution,” it said in its appeal.

Appearing for the state, former attorney general (AG) KK Venugopal said the challenge is against the Andhra Pradesh Capital Region Development Authority Repeal Act, 2020 and the Andhra Pradesh Decentralisation and Inclusive Development of All Regions Act, 2020 through which the state introduced a three-capital scheme.

Venugopal said that amid the proceedings before the high court, the state government withdrew the laws in November last year. The high court, however, continued with the proceedings, he said.

“Once the Acts (laws in question) are repealed, they (high court) must have patience on what the legislature will do. If the legislature passes it again, they have an opportunity again to examine it. Otherwise, the court will be going into mere academic issues,” the former AG said.

The high court went to the extent to suggest that the state legislature had no “legislative competence” to enact any law for shifting the three organs of the state, he added.

Staying the high court’s directions till the next date of hearing, the top court’s bench said: “You can have any number of new cities or urban centres. But it is for the state to decide where the capital should be.”

It added: “The high court has overstepped its limits. This cannot be the subject matter of a mandamus for a constitutional court. For what do we have elected representatives? We cannot assume the powers of an executive.”

The bench also took note of the state’s submission that no order should have been passed after the laws under challenge were withdrawn by the state legislature. “When the statute stands withdrawn, there is nothing but vacuum. Despite it being brought to the notice of the (high) court, it should not have decided the question,” it said.

Venugopal, who was assisted by state advocate general Subrahmanyam Sriram and advocate Mahfooz A Nazki, also pointed out that some of the directions of the high court will require at least five years to be operationalised. They submitted that with the three-capital plan being withdrawn, the earlier order by the previous government recognising Amaravati as state capital will remain operational.

The state informed the court that there is a temporary high court building in Amaravati which is functional. To this, the bench told the advocate general that they received reports that there is no canteen facility for meals at the high court, due to which many who visit the high court complex cannot stay till evening.

Also read: AP govt to conduct forensic audit of Margadarsi Chit Fund accounts

“We want the high court to function the whole day,” the bench said.

The Rajadhani Rythu Parirakshana Samiti, a body of farmers, told the top court that their valuable lands at Amaravati were pooled in at the assurance offered by the state government to develop the capital city. “This involved 33,000 acres of land belonging to 29,700 farmers,” the outfit’s counsel and senior advocate Shyam Divan said.

The samiti further said that if the state government had problems getting the high court’s directions implemented within the time frame, they could have gone back to seek modifications in the order.

Senior advocate Fali Nariman, appearing for another party opposing the three-capital formula, said the AP Reorganisation Act 2014 provides for “a capital” and hence, there cannot be “plurality” of capital.

The bench clarified: “We have passed the interim order on the power exercised by the high court. It is completely unacceptable.”

The top court, however, raised pertinent questions relating to the definition of “capital” and the statutory rights of farmers or others who are affected by the shifting of capital.

“We are trying to find out the constituent elements of the term ‘capital’,” the bench said, as it raised doubts on whether the seat of power of the state government mandates all state institutions to be situated in the capital.