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2009 DIGILAW 735 (AP)

Government of Andhra Pradesh v. N. Subrahmanyam

2009-10-23

D.S.R.VERMA, G.CHANDRAIAH

body2009
JUDGMENT D.S.R. Varma, J. Heard the learned Advocate General, the learned Government Pleader for Municipal Administration and Urban Development, appearing for the appellants, the leaned counsel appearing for the respondent No.1 and the learned Standing Counsel for Municipality, appearing for the respondent No.2. 2. This Writ Appeal is directed against the order, dated 11-12-2007, passed by a learned single Judge of this Court, allowing the Writ Petition No. 7839 of 2006. 3. Appellants are respondent Nos.1 and 2, respondent No.1 is the writ petitioner and respondent No.2 is the respondent No.3 in the said writ petition. 4. The prayer in the said writ petition is as follows:- "Petition under Article 226 of the Constitution of India seeking praying that in the circumstances stated in the Affidavit filed herein the High Court will be pleased to issue a Writ of Mandamus or any other appropriate Writ, Order or Orders, Direction or Directions declaring the action of the Respondents in depriving the petitioner of use of the land of 5.80 Acres shown as excess open space in L.P. No. 714/1984 as arbitrary, unconstitutional and illegal and to issue consequential direction to the respondents either to permit the petitioner to make use of the excess open space of 5.80 Acres as shown in L.P.No. 714/1984, in Sy. Nos. 380/A, 380IB,332/1 and 332/2, Kallur, Kurnool District, or to pay the compensation at market value to the petitioner in respect of the said land." 5. The factual matrix, in brief, is that, on 13-8-1984, a layout was approved by the respondent No.1 in respect of Ac.36.02 cents of land, situate in Survey Nos.332/1, 332/2, 380/ A and 380/B, Kallur Village, Kurnool District; that as per the requirement envisaged under G.O.Ms. No. 377, dated 12-10-1973, a total area of 5% was left as open space and the said extent came to Ac.1.80 cents; that in respect of Kurnool Municipality and the neighbouring Gram Panchayats, a master plan was sanctioned in the year 1976, under the provisions of the A.P. (Andhra Area) Town Planning Act, 1920 (for brevity "The Act) and that the layout plan held by the petitioner was included in the said master plan, under which an. extent of Ac. 7.60 cents falling in the layout of the petitioner was shown s open space. Therefore, an extent of Ac.5.80 cents was shown to be the area in excess, earmarked for open space. extent of Ac. 7.60 cents falling in the layout of the petitioner was shown s open space. Therefore, an extent of Ac.5.80 cents was shown to be the area in excess, earmarked for open space. The respondents have neither acquired the said land by paying compensation to the petitioner nor allowed him to utilize the same. 6. The learned single Judge, having considered the material, available on record, and also having heard both sides, allowed the writ petition, through the impugned order. Aggrieved by the same, the Government have preferred the presen1 Writ Appeal. 7. The learned single Judge, having gone through the order of another learned single Judge of this court, dated 30-7-2003, in Writ Petition No. 1215 of 2000, while observing that he was convinced that the facts in the said writ petition as well as in the present writ petition are identical except to the extent that in the other case there were two approved layouts and in the instant case there is only one approved layout and that this distinction is not material at all on the issue raised by the writ petitioner, rejected the submission made by the learned Government Pleader for Municipal Administration and the learned Standing Counsel for respondent No.2 herein, inasmuch as, the petitioner is required to leave 10% space, he is not entitled to the relief sought for in the writ petition. 8. The learned single Judge further observed that since the predecessors-in-title of the writ petitioner have been making every effort to convince the appellants herein as well as the respondent No.2 herein to accept their claim and the writ petitioner stepped into their shoes only in the year 2005, he was unable to agree with the submission of the learned Assistant Government Pleader that the relief sought for in the writ petition shall be rejected on the ground of laches. 9. 9. The learned single Judge further observed that it is very well settled legal proposition that no period of limitation is prescribed for entertaining a writ petition and whether a writ petition is barred by laches or not is required to be determined with reference to the facts of each case and that on the facts of his case, merely because layout was approved in the year 1984 and 30 years had elapsed since then, the writ petition cannot be thrown out without considering the events taken place during the intervening period. 10. The learned single Judge further observed that moreover the learned Assistant Government Pleader has not placed on record whether a similar contention was advanced in the other case, namely, Writ Petition No.1215 of 2000; that from the order in the said case, it does not appear that the appellants herein have raised any such contention based on laches; that having not raised such a contention in the said writ petition, the appellants herein are not justified in raising this ground in the present writ petition; that it is also not in dispute that the order in Writ Petition No.1215 of 2000 attained its finality with its confirmation by the Division Bench of this Court, by judgment, dated 5-7-2007 in Writ Appeal No. 467 of 2004 and that since the writ petitioner stands on the same footing as that of the petitioner in Writ Petition No. 1215 of 2000, he cannot be denied the relief, which was granted to the petitioner in the said case. 11. Finally, the learned single Judge had allowed the present writ petition, through the impugned order, in terms of the order, dated 30-7-2003, passed by this Court, in Writ Petition No. 1215 of 2000, with a direction that the directions contained therein shall be read as part of the order impugned in this Writ Appeal. 12. The learned counsel appearing for the writ petitioner submits that the issue involved in this writ petition is no longer res integra, inasmuch as, the same is squarely covered by the order, dated 30-7-2003, passed by a learned single Judge of this court in Writ Petition No. 1215 of 2000 (Ganesh Real Estates, Fort KU1"1lool, Rep., by its Managing Partner v. The Govt. of A.P. Public Administration and Urban Development Dept., rep., by its Secretary), which was confirmed by a Division Bench of this Court in Writ Appeal Nos. 1851 of 2004, preferred by the appellants herein, and 467 of 2004, preferred by the respondent No.2 herein, by judgments, dated 5-7-2005, which had attained the finality, inasmuch as, the same had not been challenged. 13. The learned Advocate General as well as the learned Government Pleader for municipal Administration, appearing for the appellants, and the learned Standing Counsel appearing for the respondent No.2 submits that in view of Rule-10 of the A.P. Municipalities (Layout) Rules, 1970, the writ petitioner is not entitled to the relief sought for in the writ petition and also submits that in view of the judgments of the apex Court in State of Tamil Nadu and others v. L. Krishnam and others (1) (1996) 1 SCC 250 , Government of Andhra Pradesh and others v. Kollutla Obi Reddy and others (2) (2005) 6 SCC 493 and also the judgment of this Court in Mehernosh H. Chenoy v. State of A.P., Revenue Department and others (3) 2005 (2) ALT 365 , the writ petition is liable to be dismissed on the ground of laches. 14. A perusal of the order, dated 13-7-2003, passed by a learned single Judge of this Court, in Writ Petition No.1215 of 2000, reveals that the owner of the land, in the said case also, sought for two layouts in respect of two pieces of land owned by him and the same were sanctioned in L.P.Nos.79 of 1982 and 576 of 1985; that the petitioner therein has to leave 5 per cent of the land towards open space under the Gram Panchayat Layout Rules, which comes to Ac. 0.71 cents and Ac.0.95 cents in L.p.No.576 of 1985, totaling to Ac.1.66 cents of land; that as per the Master Plan, an extent of Ac.3.50 cents of land was shown towards public purpose in the land covered under L.P.No.576 of 1985; that, therefore, an extent of Ac.1.84 cents of land had to be left open towards public purpose in addition to what has to be left towards open space under the Gram Panchayat Layout Rules; that the petitioner therein sought for compensation, in respect of the said Ac.184 cents of the land, and the same was not acceded to by the Government and that, in those circumstances, the said writ petition came to be filed. 15. The learned single Judge further observed that, while disposing of the said Writ Petition No.1215 of 2000, this Court has considered the purport of the Gram Panchayat Layout Rules, the provisions of the Act and also the rights of the owner of the land, held that the Government fails to put to us the land, which was shown for public purpose in the Master Plan for decades together and also fails to acquire the land under the Land Acquisition Act; that it is a situation where the owner of the land is deprived of the land and the Government also fails to put the land to any use by acquiring the same; and eventually directed the Government either to acquire the land or to notify a modification to the Master Plan to enable the owner to make use of the land and rejected all the contentions raised by the appellants herein, including the contention of laches. 16. The order in the said writ petition was the subject matter in Writ Appeal Nos.1851 of 2004, preferred by the appellants herein, and 467 of 2004, preferred by the respondent No.2 herein, which• were dismissed by a Division Bench of this Court, by judgments, dated 5-7-2005. It appears that the Government have implemented the said judgments, by modifying the Master Plan, after following the procedure prescribed. 17. In the said Writ Appeal Nos.1851 of 2004 and 467 of 2004, the appellants and the respondent No.2 herein have raised the very same contentions, which were raised in the said Writ Petition no.1215 of 2000. 18. It appears that the Government have implemented the said judgments, by modifying the Master Plan, after following the procedure prescribed. 17. In the said Writ Appeal Nos.1851 of 2004 and 467 of 2004, the appellants and the respondent No.2 herein have raised the very same contentions, which were raised in the said Writ Petition no.1215 of 2000. 18. The first contention is that by virtue of Rule 10(2) of the A.P. Municipalities (Layout) Rules, 1970 (for brevity "the Rules, 1970"), the owner of the land cannot seek any compensation, in any form, in respect of the land, which has been included in the Master Plan for a public purpose. 19. For the sake of convenience and ready reference, it is apt to extract the relevant provisions of the Act, 1920, and the provisions of Rule 10 of the Rules, 1970, which are thus:- 20. Section 14 of the Act enables the State Government to sanction a town planning scheme, which is also known as "Mater Plan'. 21. Section 15 of the Act empowers for variation/revocation of the schemes. 22. Chapter IV of the Act provides for payment of compensation towards the property, which is injuriously affected under the master Plan. 23. Chapter VII provides for acquiring the immovable property, which is required for the purpose of Town Planning Scheme. 24. As per Section 34 of the Act, the notification issued under Section 14 itself will act as a notification under the Land Acquisition Act without there being any separate notification. 25. Further, it is only when the land is not acquired within a period of three years from the date of notification, issued under Section 14 of the Act, the Government have to proceed afresh under the Land Acquisition Act. 26. The procedure prescribed under Section 35 of the Act enables the owner of the land to receive the compensation towards the land, which ha been acquired for the purposes of Town Planning Scheme. 27. A.P. MUNICIPALITIES LAYOUT RULES, 1970:- Rule-10:- (1) The area of land required to be set apart under clause (b) of sub-section (2) of Section 184 shall not be less than 5% of the gross area covered by the layout with not more than 8 plot per gross hectare over and above this for the increase of every two plots per gross hectare, the open spaces to be provided shall increase by one more per cent. (Such open space shall, however, be limited to 10% a maximum, irrespective of the size of plots when minimum, extent and width safety as per sub-rule (1) of Rule 9). (2) In case the area, for which a layout is sought for, falls in a Master Plan or in a Town Planning scheme and for which a draft scheme is already furnished by the Director of Town Planning or in a sanctioned Town Planning Scheme or Master Plan, if a portion of his land falls in the area earmarked in such plan for a common public purpose in the interest of general development of that locality, the owner of such land shall transfer such percentage of the area of layout as prescribed in sub-rule (1) free of cost to the Municipality. In other cases i.e., if the area so earmarked in the layout under reference are more than such percentage as prescribed in sub-rule (I), he shall also transfer the entire area so proposed to be reserved in the layout and he is entitled to receive compensation at the prevailing market rate from the Municipality for the part of his site which is in excess of the extent of land which he has to provide as per sub-rule (1). (3)....... .... (4)....... .... (5)........ ... 28. The first contention of the appellants is that as per Rule 10 (2) of the Rules when once the land of a citizen is included in a Master Plan, towards any public purpose he will not be entitled for any compensation and the land vests with the State. 29. A reading of the said Rule does not support the said contention and, on the contrary, it specifically provides that the owner of the land will be entitled to receive compensation from the municipality, at the prevailing market rates, for the part of his land, which is in excess of the extent and has to provide as per sub-rule (1) of the Rules. Further, as per sub-rule (I), the writ petitioner has to forego the land to an extent of 5 per cent of the gross area covered by the layout. 30. Further, as per sub-rule (I), the writ petitioner has to forego the land to an extent of 5 per cent of the gross area covered by the layout. 30. Therefore, even under the said Rules, the owner of the land will be entitled for compensation at the rate of market value, in respect of the land he has to forego, by virtue of the Town Planning Scheme, which is over and above the land left for public purpose under the Layout Rules. Hence, the said contention cannot be sustained. 31. In Raju S. Jethmalani v. State of Maharashtra (4) 2005 (4) SCJ 235 = (2005) 11 SCC 222 = 2005 (5) ALT 12.1 (DN SC) while dealing with the issue - whether without acquiring land, the owner can be deprived of the use of his land, reserved in the development plan - the apex Court held thus: - "Though land belonging to private persons can be included in development plan but unless the land in acquired by State Govt. or Municipal Corporation to effectuate the public purpose such development plan cannot be implemented and the landowner cannot be deprived from using the private property for any other purpose." 32. Further, in the said case (4 supra), Their Lordships of he apex Court, while confronting with a question - whether the Government can prepare a development plan and deprive the owner of the plan from using the same, held that the Government cannot deprive the persons from using their private property. 33. Further, in the said case (4 supra), Their Lordships of he apex Court, while confronting with a question - whether the Government can prepare a development plan and deprive the owner of the plan from using the same, held that the Government cannot deprive the persons from using their private property. 33. The facts, in brief, of the said case, are that private land was reserved in the development plan for park and garden to which the landowner had no objection; that, however, the land was not acquired and the appellants therein, who are private persons, to whom the land was sold by the original owner moved for dereservation of the and in order to use it for residential purposes; that the Government, after following the prescribed procedure, issued notification inviting objections against the proposed dereservation; that the residents of the area having then raised no objections and the Municipal Council having expressed its inability to muster up the necessary funds, notification granting dereservation issued and only thereafter the residents have filed a PIL before the High Court of Bombay impugning the notification on the ground that once the land was earmarked for a particular purpose, the same could not be dereserved to defeat the public purpose and that the High Court of Bombay deferred quashing of the notification by two years and placed burden on the private landowners to provide necessary area, suitable for the purposes of park and garden as envisaged in the development plan. 34. The apex Court, while holding that the High Court of Bombay erred in placing the burden on the appellants instead of on the State Government or Municipal Corporation; that as the Government and the Municipal Corporation failed to acquire the land, appellants therein cannot be deprived of the use of the land for residential purpose; that a citizen cannot be deprived of his rights without following proper procedure of law, set aside the said direction of the High Court of Bombay. 35. However, the apex Court granted six months' time to the residents to raise funds for acquisition of land by the Government, failing which the appellants therein granted liberty to use the land for residential/other purposes. 36. From a perusal of the said case, it is obvious that in pursuance of a developmen1 plan, a piece of land was kept for public purpose and was ultimately dereserved. 36. From a perusal of the said case, it is obvious that in pursuance of a developmen1 plan, a piece of land was kept for public purpose and was ultimately dereserved. In view of the fact that the authorities have failed to acquire the land or put the same to use for the public purpose for a long time, the Apex court upheld the action of dereserving of the land and left it open to the authorities to acquire the land, if they are still interested to use the same for a public purpose. 37. The ratio decided by the Apex Court, in the said case, is squarely applicable to the facts and circumstances of the present case. Further, the facts, in the said case (4 supra), before the apex Court, are similar and identical to the facts in the case on hand. 38. The other contention of the appellants is that the present writ petition is hit by laches, inasmuch as, the layout was sanctioned in the year 1984 and the present writ petition is filed in the year 2006 i.e., after a lapse of 22 years, and since the writ petitioner is not the original owner of the land and having purchased the same in the year 2005 with full knowledge of the implications of the Master Plan, the writ petitioner cannot seek any relief in respect of the land of Ac. 5.80 cents and the writ petition is liable to be dismissed. 39. From a perusal of the affidavit, filed in support of the writ petition, it is obvious that representations have been submitted by the successive owners of the land, to the Government, seeking compensation towards the land, which is lost under the Master Plan. Further, under the Act, the Government have to acquire the land within a period of three years, from the date of notification, issued under Section 14 of the Act, 1920, failing which the procedure under the Land Acquisition Act will have to be followed. 40. Admittedly, for the last 25 years, the Government have not taken any such steps either to acquire the disputed land or to put the same to any use, as per the Master Plan. In these circumstances, it is not open for the Government to contend that the writ petitioner ought to have rushed to the Court much earlier. 41. 40. Admittedly, for the last 25 years, the Government have not taken any such steps either to acquire the disputed land or to put the same to any use, as per the Master Plan. In these circumstances, it is not open for the Government to contend that the writ petitioner ought to have rushed to the Court much earlier. 41. In Ramachandra Shankar Oeodhar v. The State of Maharashtra (5) AIR 1974 Supreme Court 259 while dealing with the issue whether the delay or laches bars the relief the Apex Court held thus:- "The rule which says that a Court may not inquire into belated stale claims is not a rule of law but a rule of practice based on sound and proper exercise of discretion, and there is no inviolable rule that whenever there is delay the Court must necessarily refuse to entertain the petition. The question is one of discretion to be followed on the facts of each case." 42. In Scholars and Teachers Action Committee v. Andhra University (6) 1996 (2) ALD 1220 , while dealing with the issue of 'delay', a Division Bench of this Court took note of the decision of the Full Bench of Patna High Court, wherein it was held as under:- "In Jagannath Mishra v. State (AIR 1990 Patna 110 a Full Bench of the Patna High Court of which one of us (Prabha Shankar Mishra, J, as he then was) was a member, held that delay in filing the writ petition may be overlooked where the writ petition is admitted and the petitioner has a positively good case on merits." 43. Further, the Division Bench of this Court in Scholars case (6 supra), while referring to the decisions of the Apex Court in Ramachandra Shankar Oeodhar case (5 supra), State of Madhya Pradesh v. Nandalal Jaiswal (4) AIIR 1987 SC 251), M/s. Dehri Rohtas Light Railway Company Ltd. v. District Board Bhojpur (5) 1992 (2) SCC 598 etc., held that the question of delay is not a rule of law but a rule of practice based on sound and proper exercise of discretion; that there is no upper or lower limit for the delay and no period of limitation is prescribed for filing a writ petition and that the delay in filing the writ petition may be over looked where the writ petition is admitted and the petitioner has positively a good case on merits. 44. A perusal of the impugned order reveals that the learned Assistant Government Pleader has not placed on record whether a similar contention Le., the wit petition was filed with delay and there are laches on the part of the petitioners therein, was advanced in the earlier Writ Petition No. 1215 of 2000 and from the order in the said case, it does not appear that the appellants herein have raised any such contention based on laches and having not raised such a contention, in the said writ petition, the appellants herein are not justified in raising this ground in the present wit petition also. 45. Therefore, it was observed by the learned singled judge that it is also not in dispute that the order in Writ Petition No.1215 of 2000 attained its finality with its confirmation by the Division Bench of this Court, by judgments, dated 5-7-2007, in Writ Appeal Nos. 1851 of 2004 and 467 of 2004, and that since the writ petitioner stands on the same footing a that of the petitioner in Writ Petition No.1215 of 2000, he cannot be denied the relief, which was granted to the petitioner in the said case. 46. 1851 of 2004 and 467 of 2004, and that since the writ petitioner stands on the same footing a that of the petitioner in Writ Petition No.1215 of 2000, he cannot be denied the relief, which was granted to the petitioner in the said case. 46. Therefore, the view taken, the reasoning thereof and the eventual conclusion arrived at by the learned single Judge, which is fortified by the decision of the apex Court in Ramachandra Shankar Deodhar case (5 supra) and the Division Bench of this Court in Scholars case (6 supra), insofar as the issue that there is no specific period for invoking Article 226 of the Constitution of India, the delay can be overlooked if the petitioner has positively a good case, on merits, are right and cannot be interfered with. 47. The principles laid down by the apex Court, in the said decisions (1 to 3 supra), relied upon by the appellants, are unexceptionable, but they are not applicable to the facts and circumstances of the case on hand. 48. Since the Writ Appeal Nos.1851 of 2004 and 467 of 2004, preferred b the appellants and the respondent No.2 herein, respectively, have been disposed of, with consent of both parties, the judgments in the said Writ Appeals had attained the finality. Therefore, no view, other than the one taken in the said Writ Appeals, can be taken in this Writ Appeal. 49. Further, the issue involved and the subject matter in the Writ Petition No. 1215 of 2000 (Ganesh Real Estates, Fort Kurnool, Rep., by its Managing Partner v. The Govt. of A.P. Public Administration and Urban Development Dept., rep., by its Secretary), which was disposed of by order, dated 30-7-2003, and confirmed by a Division Bench of this Court in Writ Appeal Nos. 1851 of2004, preferred by the appellants herein, and 467 of 2004, preferred by the respondent No.2 herein, by judgments, dated 5-7-2005, were also one and the same. 50. We are of fortified with the principles laid down by the apex Court in Raju S. Jethmalani case and Ramachandra Shankar Deodhar case (4 and 5 supra) and the Division Bench of this Court in Scholars case (6 supra) and since the learned single Judge had elaborately dealt with all the contentions raised by both the sides, we cannot take any different view than the one taken by the learned single Judge. 51. 51. Since the reasoning, given by the learned single Judge, in the impugned order, is well reasoned and requires no interference, the said contention of the appellants is rejected. 52. For the foregoing, the Writ Appeal fails and is liable to be dismissed. 53. In the result, the Writ Appeal is dismissed. However, there shall be no order as to costs.