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2003 DIGILAW 949 (AP)

Ganesh Real Estates v. Govt. of A. P.

2003-07-30

L.NARASIMHA REDDY

body2003
ORDER : L. Narasimha Reddy, J. The petitioner is a firm undertaking the activity of real estate development. It had purchased lands in Sy.Nos.703, 708 to 711 and 720 of Kallur village, Kumool District. With a view to develop the same, it submitted two applications for grant of lay out to the then Gram Panchayat of Kallur village, the 4th respondent herein. On a consideration of the same, the 4th respondent accorded two permissions viz., LP.No.79 of 1982 covering an area of Ac. 14.29 cents and LP.No.576/85 covering an area of Ac.18.19 cents. 2. As per the Rules prevailing at the relevant point of time, 5% of the total area was required to be left towards open space. Accordingly, an extent of Ac.0.71 cents in respect of LP.No.79/82 and Ac.0-95 cents in respect of LP.No.596/85 was required to be left towards open space. Since the lands were held by the same agency and the layouts were abutting each other, the competent authority sanctioning the layouts, had identified both the extents of open space to be carved out, from the land covered by LP.No.576/85. Thereby an extent of Ac.1-66 cents was marked out towards open space for both the layouts. 3. The master plan for the Kallur village is covered by the master plan of the then Kumool Municipality, prepared in the year 1976. According to the master plan, Ac.3-50 cents, which is within LP.No.576/85 was earmarked for public purpose. Out of this, Ac.1-66 cents was already identified as open space for the two layouts referred to above. The balance of Ac. 1-84 cents continued to be treated as the one for public purpose. The petitioner is not permitted to put that portion of the land to any other use. 4. The petitioner had submitted a representation dated 5-4-1995, narrating the facts referred to above and requested the Government to dereserve Ac. 1-84 cents of land from public purpose, so as to enable it to put the same to any other use. Correspondence ensued thereon. Respondents 1 and 2 have directed the 4th respondent, to consider the feasibility of acquiring the area, in accordance with the provisions of A.P.Town Planning Act (hereinafter referred to as The Act'). After ascertaining the views of the 4th respondent, the 2nd respondent addressed letter dated 15-1-1997 to the 1st respondent. Correspondence ensued thereon. Respondents 1 and 2 have directed the 4th respondent, to consider the feasibility of acquiring the area, in accordance with the provisions of A.P.Town Planning Act (hereinafter referred to as The Act'). After ascertaining the views of the 4th respondent, the 2nd respondent addressed letter dated 15-1-1997 to the 1st respondent. It is to the effect that the compensation is required to be paid for the excess area of Ac. 1-84 cents, and since the 4th respondent has expressed its inability to pay the compensation, the area needs to be dereserved. In the meanwhile, the 4th respondent-Kallur Gram Panchayat was merged in the Kurnool Municipal Corporation, the 3rd respondent herein. The petitioner complains that despite the recommendation of the 2nd respondent, no action has been taken so far and, therefore, seeks appropriate directions in this regard. 5. The 1st respondent filed counter affidavit, narrating the circumstances under which the lay outs came to be granted and as to how the 5% of the lay out area was identified towards open space. It is stated that since the petitioner was granted two separate layouts, 10% open space is required to be earmarked for open space and hardly any area remains after setting apart the 10% of the total area. Respondents 3 and 4 have taken almost the same stand. 6. Sri Vedula Srinivas, learned counsel for the petitioner, submits that the petitioner had left open space, as required under the Rules then in force, and the question of enhancing the extent from 5% to 10% does not arise. Relying on the provisions in Sections 33 and 34 of the Act, he submits that the petitioner is entitled to be paid compensation for the land, if the respondents want to treat the area for public purpose. It is also his contention that in case the respondents, particularly respondents 3 and 4, are not willing to pay the market value for the land, respondents 1 and 2 have to deserve the area, enabling the petitioner to put it to proper use. 7. Learned Government Pleaders for Municipal Administration and Panchayat Raj and the Standing Counsel for respondents 3 and 4, on the other hand, submits that the open space required to be set apart is 10% and, in that view of the matter, hardly there remains any excess area. 7. Learned Government Pleaders for Municipal Administration and Panchayat Raj and the Standing Counsel for respondents 3 and 4, on the other hand, submits that the open space required to be set apart is 10% and, in that view of the matter, hardly there remains any excess area. They contend that Ac.1-84 cents of land claimed by the petitioner has to be treated as open space, to be handed over to the local authority while granting lay out, and it cannot be permitted to be put to any proper use. 8. The petitioner had approached the 3rd respondent with two separate applications for grant of lay out in respect of an area of Ac.33.19 cents. On a consideration of the same, with the approval of the 2nd respondent, the 3rd respondent accorded approval on 25-9-1984 for Ac. 14-29 cents under LP.No.79/82 and for the balance extent in the year 1985 through LP. No.576/1985. 9. The Government of Andhra Pradesh in the Panchayat Raj Department, framed "Rules Relating to the Regulation or Restriction of Building and the Use of Sites for Buildings" in G.O.Ms.No.377 dated 12-10-1973, in exercise of its powers under Section 217 of the A.P. Gram Panchayat Act 1964 (hereinafter after referred to as 'the Rules'). These Rules provide for various measures to be taken, while granting approval of lay out in favour of private parties. Rule 3(b) reads as under :- "3. Owners obligation to make a layout and to form a street or road when disposing of lands as building sites : (1) The owner of any and shall before he utilises, sells, ceases or otherwise disposes of such land or any part on thereof, as sites for construction of building - (a)..... (b) Set apart in the layout, at least 5 percent of the total area of land for a playground, a pork, an educational institution or for any other public purpose as may be prescribed by the Gram Panchayat;" It was in this context that the petitioner was required to surrender 5% of the total area while granting the layout. For both the layouts put together, 5% area worked out to Ac. 1-66 cents. There is no dispute as to surrender of that extent of land by the petitioner nor does the petitioner claim any right in respect of that land. The respondents, particularly the 1st respondent, do not dispute this legal or factual position. For both the layouts put together, 5% area worked out to Ac. 1-66 cents. There is no dispute as to surrender of that extent of land by the petitioner nor does the petitioner claim any right in respect of that land. The respondents, particularly the 1st respondent, do not dispute this legal or factual position. However, a contention is advanced to the effect that since the petitioner was granted two layouts separately, the open space would become 10%. The relevant portion of the counter affidavit reads as under :- "If the APGP layout Rules are taken (into) consideration, the area required for reserved open space as per Rule 3(l)(b) issued in G.O.Ms.No.377 PR.,dt.12-10-1973 "at least 5% of the total area of layout shall be earmarked for open space for public purpose" and there is no provision for dereserving the open space and payment of compensation in APGP layout Rules issued in the said G.O. In this instant case the open space earmarked for site A and B is put together 10% (3). Hence, the question of dereseving the open space or payment of compensation does not arise, since at least 5% area of the layout means a minimum of 5% of layout area required for open space and maximum may be as per the requirement of the neighbourhood development proposed in the layout/GTP Scheme." The contention advanced by the 1st respondent, as evidenced from the above paragraph, deserves to be rejected straight away. It is both vague, and makes no sense. It was not as if the area surrendered the petitioner did not represent 5% of the total area. 10. The 1st respondent published master plan for Kumool town in 1976. According to that, an area of Ac.3-50 cents in Survey Nos.703, 708 to 711 and 720 was earmarked for public purpose. Out of this, the petitioner had surrendered Ac.1-66 cents under the two layouts. The 3rd respondent did not permit the petitioner to plot out the balance Ac. 1-84 cents, on the ground that it was earmarked for public purpose. Therefore, the petitioner submitted an application to the 1st respondent to dereserve Ac.1-84 cents of land or, in the alternative, to pay the compensation. 11. The 3rd respondent did not permit the petitioner to plot out the balance Ac. 1-84 cents, on the ground that it was earmarked for public purpose. Therefore, the petitioner submitted an application to the 1st respondent to dereserve Ac.1-84 cents of land or, in the alternative, to pay the compensation. 11. Under Section 33 of the Act, wherever any land is earmarked for public purpose under a master plan, the same is required to be acquired, either under the Land Acquisition Act or as provided for under the Town Planning Act itself. Under Section 34 of the Act, a notification issued under Section 14 thereon is accorded the status of declaration under Section 6 of the Land Acquisition Act. Such a notification came to be issued in respect of the land of the petitioner. Therefore, the 4th respondent or its successor, the 3rd respondent, was required to comply with the provisions of Section 33 and 34 of the Act. It has come on record that the 3rd respondent and its successor, the 4th respondent, have expressed their inability to pay the compensation on account of paucity of funds. The correspondence that ensued among the respondents bears ample testimony of these facts. 12. Acting on the representation of the petitioner, the 1st respondent called for necessary remarks to decide as to whether the land needs to be dereserved. On consideration of the entire matter, the 2nd respondent recommended dereservaton through its letter dated 15-1-1997. No proceedings were issued thereafter. The stands taken by the respondents in their respective counter affidavits run contrary to this as well as the provisions of the Act and the relevant Rules. The petitioner cannot be compelled to part with the land without being paid the compensation. The land does not vest in the Government or the local authority, as the case may be, simply because it is identified for public purpose under a master plan. The vesting would take place, if only the follow up action in the form of acquisition, be if under that very Act or the Land Acquisition Act, is taken. Admittedly, such course was not adopted by the respondents. The reluctance of respondents 3 and 4 to pay the compensation rules out the possibility of the land being acquired. 13. The vesting would take place, if only the follow up action in the form of acquisition, be if under that very Act or the Land Acquisition Act, is taken. Admittedly, such course was not adopted by the respondents. The reluctance of respondents 3 and 4 to pay the compensation rules out the possibility of the land being acquired. 13. Therefore, two eventualities arise, (a) The petitioner itself can use the land in accordance with the purpose specified in the master plan; or (b) The Government has to pass necessary orders dereserving the land from the specific use, in view of the inability of respondents 3 and 4 to pay the compensation. 14. So far as the 1st eventuality is concerned a citizen cannot be compelled to put his property to public use. If the State identifies any particular property for public use, it has to acquire the same and pay compensation, as provided for under the relevant law. Coming to the second aspect, it is true that this court cannot compel any authority to dereserve the land. Such reluctance would be almost absolute in cases where the land was identified for uses other than the public use. For example, if the land is earmarked for the industrial use and the owner thereof wants to put it to residential use, this court cannot compel the Government to change the use of the land. However, where the land is identified for public purpose, and it is not acquired as provided under Sections 33 and 34 of the Act, the case of non-compliance with the provisions of the Act comes into existence. The master plan, which is a creation under the Act, has to conform to the provisions of that Act. The plan, to the extent it does not conform to the provisions of the Act, cannot be sustained. Necessary modifications have to be made to the plan. In such cases, the exercise of jurisdiction of the court would be more in the nature of ensuring compliance with the provisions of the Act, than compelling the Government to dereserve the land from public use. 15. Necessary modifications have to be made to the plan. In such cases, the exercise of jurisdiction of the court would be more in the nature of ensuring compliance with the provisions of the Act, than compelling the Government to dereserve the land from public use. 15. Hence, the writ petition is allowed, directing the 1st respondent to issue necessary notification, modifying the purpose mentioned in the master plan for Kurnool municipality published in 1976 under the A.P.Town Planning Act, in so far as it relates to an extent of Ac.1-84 cents of land in Sy.Nos.703, 708 to 711 and 720 of Kallur village, Kurnool Municipality, or to acquire that land as provided for under Sections 33 and 34 of the A.P. Town Planning Act, within 3 months from the date of receipt of a copy of this order. Failure to do so would entitle the petitioner to put that land to the use, on par with the other surrounding lands, except the area of Ac. 1-66 cents, which was surrendered by it towards open space, under the corresponding layouts. No costs.