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Andhra High Court · body

2008 DIGILAW 101 (AP)

Gunda Vishvanadham v. Government of A. P.

2008-02-12

C.Y.SOMAYAJULU

body2008
ORDER :- Petitioner purchased Ac.1-30 cents in S.No.300 of Kallur Gram Panchayat with 60' x 80' dimensions under a registered sale deed dated 13-5-1974. As per the Master Plan prepared for Kurnool including the Kallur Gram Panchayat a 60' wide road has to pass through the land in S.No.299 and according to the petitioner no road was proposed through S.No.300 in that master plan. A neighbouring land owner of the petitioner had after obtaining approval from the Kallur Gram Panchayat constructed godowns and leased it out to the Food Corporation of India in or around 1978. Subsequently petitioner also made an application to the Kallur Gram Panchayat for permission to construct godowns in his own land which was sanctioned on 29.11.1987. But due to his personal reasons he could not proceed with the construction of the godowns. When he contemplated to sell the land to meet his family expenses, he heard rumors that a 30' wide road would be passing through his land and so when he enquired with the third respondent (Municipal Corporation, Kurnool), it, in order to find out the truth of that rumor, addressed a letter dated 17.01.2003 to the second respondent (Director of Town and Country Planning) enclosing the remarks of the Town Planning Department that no Master Plan in which a 60' wide road passes through S.No.300 is there with it and the road passes through S.No.299 only. Second respondent vide the letter dated 26.02.2003 asked the 3rd respondent to verify LP No.161/1987 and the actual ground position, whereupon third respondent sent a reply dated 09.05.2003 to the second respondent reiterating that there is no Master Plan effecting the land of the petitioner in S.No.300, as the road is to pass through only S.No.299. Vide proceedings dated 16.06.2003 second respondent stated that in view of the variations made in the Master Plan 60ft wide road passes through the land of the petitioner and that fact should be taken note of by all the authorities concerned. Third respondent informed that fact to the petitioner through the endorsement dated 12.07.2003. The case of the petitioner is that inasmuch as the alterations made in the plan were without following the procedure contemplated by Section 15(2) of the A.P. Town Planning Act, 1920 (the Act) under Rule 72 of the Rules made under the Act, alteration of the Master Plan is invalid. 2. The case of the petitioner is that inasmuch as the alterations made in the plan were without following the procedure contemplated by Section 15(2) of the A.P. Town Planning Act, 1920 (the Act) under Rule 72 of the Rules made under the Act, alteration of the Master Plan is invalid. 2. No counter affidavit is filed on behalf of the first respondent. 3. In the counter affidavit filed on behalf of the second respondent it is stated that the Master Plan for Kallur village was sanctioned vide G.O.Ms.No.158 M.A. dt.26.3.76 under Section 14 of the Act. As the owners of the land in R.S.nos.300p, 301A, 301B, 302, 304, 305, 306, 307p, 308p, 411/1, 412p and 430 F/P of Kalluru village requested for change of land use from Heavy Industrial and Residential use to commercial use and for realignment of 60'-0' wide Master Plan road, and as the Government agreed for the said change of land use, the Town Planning Department prepared a draft variation plan in G.T.P.No.12/85 changing the use of the land in the earlier sanctioned Master Plan, realigning the 60' wide road. Objections and suggestions from public were called for in respect of the draft variation under Section 15(2)(b) of the Act. As no objections and suggestions were received, order confirming the variation was issued vide G.O.Ms.No.289 M.A. dt.13.6.86 and the same was published in the A.P. Gazette part-I dated 10.07.86, basing on which the Town Planning Department issued a lay out L.P.No.352/87 (revision of L.P.No.161/87) in S.Nos.300/1B(P), 300/2(P) and 300/3B(P) of Kallur village, Kurnool District, as per the variations made in the G.T.P Scheme (Master Plan) by the Government. After the Commissioner of the Kurnool Municipality had along with his letter dated 17.01.2003 forwarded the application of the petitioner for realignment of 60 feet wide Master Plan Road, the Town and Country Planning office scrutinized the proposals and observed that the 60 feet wide road is passing partly through the land of the petitioner to a depth of 30 feet as per G.T.P.No.12/85 as per the variations made to Master Plan of Kurnool town, as approved by the Government. Petitioner who did not raise any objection to the proposed variation to the Master Plan, cannot complain against the modifications in the Master Plan, is not entitled to any relief. 4. Petitioner who did not raise any objection to the proposed variation to the Master Plan, cannot complain against the modifications in the Master Plan, is not entitled to any relief. 4. On behalf of the third respondent its Commissioner filed his counter affidavit inter alia stating that as per the Master Plan for Kurnool town and its vicinity, sanctioned in the year 1976, under the provisions of Section 14 of the Act, 60 feet wide road passes through S.No.299. In view of a letter addressed to the 2nd respondent requesting to modify the road pattern suggested in L.P.No.161/87 in the then Kulluru gram panchayat area, objections and suggestions were invited by the Government by duly publishing the same in the A.P. Gazette. As no objections and suggestions were received from the general public regarding the proposed realignment of the road in the master plan, the Government confirmed the proposal of realignment of the road in the Master plan. After following the procedure and duly publishing in the A.P. Gazette, first respondent confirmed the proposal of realignment of the road in the master plan, petitioner is not entitled to the relief sought. 5. The contention of the learned counsel for the petitioner is that as a reading of the counter affidavit filed on behalf of the 3rd respondent itself shows that the procedure contemplated by Rule 72 of the Rules made under the Act was not followed and as no documents are produced to show that the draft was published in the mode contemplated by Rule 72 of the Rules, by publishing the same on the notice board of the local authority concerned and in one or more conspicuous places in or near the area included in the scheme, situate within the jurisdiction of the local authority concerned, and as the counter affidavit of the 3rd respondent baldly speaks of publication being made in the official gazette only, in view of the ratio in Smt. M. Ragamma Vs. State of A.P. and others1 the publication said to have been made cannot be treated as proper publication, and so the impugned notification is liable to be quashed. State of A.P. and others1 the publication said to have been made cannot be treated as proper publication, and so the impugned notification is liable to be quashed. It is his contention that if the Court were to hold the variation in the Master Plan is not liable to be quashed, as the petitioner cannot be deprived of his property otherwise than by taking recourse to due process of law in view of Article 300 A of the Constitution and in view of the ratio in Raju S. Jethmalani and others Vs. State of Maharashtra and others petitioner cannot be dispossessed from his land without the same being acquired under the provisions of the Land Acquisition Act. 6.The contention of the learned Government Pleader is that the impugned notification which was issued after following the procedure prescribed by the Act and the Rules made thereunder, cannot be challenged by the petitioner who did not file any objections, when called for. The contention of the learned standing counsel for the 3rd respondent also is that as the petitioner did not file any objections he cannot question the G.O., and in view of the financial position of the 3rd respondent, it cannot acquire the land of the petitioner for the purpose of laying a road. 7.None of the respondents produced any document to show that after publication of the notice in the gazette, it i.e. the notice was published in the area by affixing the same on the notice board of the local authority and in one or more conspicuous places in or near the area included in the scheme, as contemplated by Rule 72 of the Rules. The idea behind the publication of the notice on the notice board and the area in and near the affected area is to make the people aware of the intended change, because people of the effected area generally do not look into the gazette. When I directed the respondents to produce the relevant records for perusal, the learned Government Pleader produced some records along with a file in which it is noted that some of the disposals pertaining to MALUD were drenched due to heavy rains on 24.8.2000 and are fully damaged. The learned Government Pleader stated that in view of the fact that the record was drenched and damged, the same is not being produced. The learned Government Pleader stated that in view of the fact that the record was drenched and damged, the same is not being produced. Copy of GTP No.12/85 proposing the variation to the earlier plan, and the publications made in the gazette are produced for perusal by the court. As publication in the gazette only per se does not comply with requirement of Rule 72 of the Rules, which contemplates the Government communicating the draft to the municipal council or the local authority, within whose limits any portion of the area included in the scheme is situated, and the executive authority or the local authority has to republish it by pasting a copy thereof on the notice board to the office of the local authority and in one or more conspicuous places in or near the area included in the scheme and situated within its jurisdiction within ten days of his receipt of the copy of the draft notification. 8. The affidavit of the 3rd respondent does not disclose that the procedure contemplated by Rule 72 of the Rules was followed either by Kallur Gram Panchayat or the Kurnool Municipality, and no record is produced to show when Kallur Gram Panchayat merged in Kurnool municipality. If the merger took place prior to 1985, it is the Kallur Gram Panchayat that should have made the publication and if the merger took place after 1985, it is the 3rd respondent that should have made the publication. When a specific allegation is made by the petitioner in his affidavit that the procedure contemplated by the Act and Rules is not followed, 3rd respondent baldly stating that respondents 1 and 2 complied with the procedure contemplated by the Act and Rules by publishing the notification in the gazette would not suffice. It is the 3rd respondent that should state that the procedure prescribed by Rule 72 of the Rules was complied with and what was done on what date in compliance with the Rule 72 of the Rules i.e., when the draft was pasted on the notice board and on what date the draft publication was pasted in which area. Since there is no such allegation in the counter affidavit filed by the 3rd respondent it has to be presumed that publication as contemplated by Rule 72 of the Rules was not made. 9. Since there is no such allegation in the counter affidavit filed by the 3rd respondent it has to be presumed that publication as contemplated by Rule 72 of the Rules was not made. 9. In M.Ragamma Case (1 supra), which arose out of the proceedings under the provisions of the A.P. Urban Areas (Development) Act, 1975, which are almost similar to the provisions in the Act and Rules made there under, it is held that when procedure prescribed by the relevant Rules is not followed, the proceedings effecting changes are liable to be quashed. As the counter affidavit filed by the 3rd respondent does not disclose that the procedure prescribed by Rule 72 of the Rules was followed and as the documents relied on by respondents also show that even 3rd respondent was not aware of the existence of the impugned notification, because had the 3rd respondent been aware of the impugned notification, it would not have approved the plan for construction submitted by the petitioner vide the proceedings dated 29.11.1987, and would not have sought clarification from second respondent, and so prima facie, it has to be taken that the notification impugned was made without publishing the same as contemplated by the Act and Rules. So in view of the ratio in M. Ragamma case (1 supra) the notification impugned is liable to be quashed. 10. Even otherwise also in view of the ratio in Raju S. Jethmalani case (2 supra) as the petitioner cannot be deprived of his property by the respondents merely by including it in the master plan without acquiring the same from him under the provisions of the Land Acquisition Act, respondent by merely making a publication in the gazette by including the property of the petitioner take it away from him for laying a road. If they want to lay a road on his property, respondents have to acquire the land of the petitioner as per the procedure prescribed. 11. In view of the above, the Writ Petition is allowed and the notification impugned is quashed. No order as to costs.