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2020 DIGILAW 791 (AP)

Thota Subba Rao v. State of A. P.

2020-12-10

D.V.S.S.SOMAYAJULU

body2020
ORDER : D.V.S.S. Somayajulu, J. 1. This Writ Petition has been filed for the following amended prayer: "....to call for records from the respondent authorities and issue a writ of mandamus declaring the action of the respondents in altering the approved master plan of the Pidimgoyyi Panchayat in respect of the 80 feet proposed road by publishing the altered plan and issuing notice dt. 20.07.2018 and the consequential G.O.Ms. No. 411, dated 20.12.2018, without considering the objections of the petitioners and others and by proceedings dated 19.03.2020 by which the objections are still being considered and by which all the residents of the locality will be affected by demolishing the residential houses, industrial units and shops etc., without a notification under Section 3 of Act 5 of 2016 and non compliance of other provisions as illegal, arbitrary, violative of the constitutional provisions particularly Article 300A, 14, 21 and consequently direct the authorities to follow the master plan of the panchayat, prior to the proposed alteration while laying the 80 feet proposed road and pass such other orders as are deemed fit and proper in the interest of justice and pass such other orders as are deemed fit and proper in the interest of justice." 2. This Court has heard Sri S. Sriramachandra Murthy, learned counsel for the petitioners. Learned Government Pleader for the 1st respondent-Municipal Administration and Urban Development, Sri K.K. Durga Prasad, learned Standing Counsel for the 2nd respondent-GUDA and Sri M.S.R. Sashi Bhushan for the 4th respondent. On behalf of the 3rd respondent-Municipal Corporation, learned Standing Counsel Sri M. Manohar Reddy argued. 3. The learned counsel for the petitioners states that the petitioners are residents of an area called Pidimgoyyi, outside the city of Rajamahendravaram. They all claimed to be settled in the said area having constructed houses, established businesses etc., since long. They are questioning the change in the alignment of a 80 feet road. The original master plan had this road in a particular alignment. Now because of the objections raised by the 4th respondent the same is proposed to be changed. The contention of the petitioners is if a new road is formed about 26 families will lose their investments, houses, shops etc. Although in the pleading it is said that 26 people are involved only six people are before this Court as petitioners. Now because of the objections raised by the 4th respondent the same is proposed to be changed. The contention of the petitioners is if a new road is formed about 26 families will lose their investments, houses, shops etc. Although in the pleading it is said that 26 people are involved only six people are before this Court as petitioners. Learned counsel for the petitioners points out that the change in the alignment of the road has been done only to suit the interest of the 4th respondent, who is a prominent and a powerful person. The contention of the learned counsel for the petitioners is that the objections that were given about the change in the alignment were not considered at all. He pleaded it was an empty formality. He points out that the 4th respondent is the owner of a vacant site, whereas the petitioners are residents of houses which have been built houses or factories etc., which have been established after obtaining due approvals. It is the contention of the learned counsel for the petitioners that the entire exercise is vitiated by mala fides and that neither the State nor its officials acted as required under law. He submits that the entire exercise is vitiated and that the Writ Petition should be allowed. He questions the decision making process which according him is tainted and therefore urges that the Writ Petition must be allowed. 4. For the 1st respondent learned Government Pleader appeared and argued in line with the counter that has been filed. According to them the change in the alignment has become necessary and is not activated by any malice and that the action taken is as per law. He points out that because of the change there would be a four road junction instead of staggered junction and therefore free flow of traffic would be effected. Relying upon the documents filed, learned Government Pleader argues that the action is as per law. 5. For the 2nd respondent also a detailed counter has been filed. The learned counsel points out that the original master plan was sanctioned in the year 1975 and has been followed till date. Subsequently, Rajamahendravaram Municipal Corporation took up the revision of the master plan and thereafter after considering the objections on 26.07.2017 a revised master plan was published. 5. For the 2nd respondent also a detailed counter has been filed. The learned counsel points out that the original master plan was sanctioned in the year 1975 and has been followed till date. Subsequently, Rajamahendravaram Municipal Corporation took up the revision of the master plan and thereafter after considering the objections on 26.07.2017 a revised master plan was published. On 21.08.2017 the 4th respondent submitted a representation to realign the master plan as a four road junction and the Government took up the matter basing on their representation and came to the conclusion that the 80 feet road proposed in 1975 was passing through the site of the 4th respondent and that buildings have also come up along the main road of the old master plan and therefore a new plan was suggested. He also argues that after following due process viz., the publication, inviting objections etc., the changes have been suggested and therefore learned counsel argues that because of the change in the alignment there will be a better flow of traffic. He justifies the change in the alignment. The standing counsel for the Municipal Corporation supports the actions taken. 6. For the 4th respondent Sri M.S.R. Sashi Bhusan argued the matter and it is his contention that as the 4th respondent made a request to change the alignment in public interest and that the revised plan would create a four road junction and not a staggered junction. In fact, he states that the plan of 26.07.2017 should be discarded and the new alignment which would lead to a nice clear four road junction should be allowed to be formed. It is his contention that the four road junction as envisaged in 1975 should be brought back into existence. Learned counsel vehemently supports the order and disputes any allegation of mala fides. On the other hand, he argues that the Writ Petition itself is misconceived. 7. The facts which cannot be disputed are that there was a plan formed in 1975. According to the said plan there is alignment of the road and that alignment is shown as 'AB' in plan with the counter filed by the 1st respondent. The proposed alignment is shown as 'AA'. The old alignment namely "AB" is sought to be restored. It is this proposal to change the alignment of the road from 'AA' to 'AB' that is being questioned. The proposed alignment is shown as 'AA'. The old alignment namely "AB" is sought to be restored. It is this proposal to change the alignment of the road from 'AA' to 'AB' that is being questioned. According to the petitioners, all of them have constructed houses and are residing there, some have established factories etc., also. The fact remains that the petitioners are asserting that the 26 people will be affected if 'AB' is formed. The petitioners assert that if 'AA' is allowed to be formed it will only disturb the site belonging to the 4th respondent since the new alignment suggested 'AA' would pass through the 4th respondent site. On the other hand, if the 'AB' alignment, which has been suggested in 1975, but near which and over which houses have been constructed and developments have been allowed to be taken place is disturbed, learned counsel for the petitioners submits that lot of people would suffer serious losses. 8. The question, therefore, that arises is whether the action was taken rightly and the decision making process is correct being based on clear data. It is not in dispute that the petitioners have secured approval from the Panchayat Secretary, Pidimgoyyi Gram Panchayat and constructed their houses. In fact, in the counter affidavit filed it is stated that they are to be "construed" as having obtained plans. The counter affidavit of the 1st respondent also says that only 2 RCC roofed buildings and one temporary AC sheet roof property will be affected. Therefore, it is clear that there are constructions which have come up. These details were furnished in the counter affidavit of the 2nd respondent. 9. The report of the survey said to have been conducted is not however disclosed. Therefore, even if the averments of the counter are accepted at face value the property belonging to at least three people would be affected vis a vis the effect on the property of the 4th respondent. 10. It is also seen from the counter affidavit filed that the new plan to shift the road to 'AA' was published in July, 2017. An objection to the same was raised by the 4th respondent on 21.08.2017. Immediately the same was forwarded and a meeting was conducted on 28.08.2017. The Director of Town and Country Planning reacted on 30.08.2017 and thereafter a survey was supposedly conducted. An objection to the same was raised by the 4th respondent on 21.08.2017. Immediately the same was forwarded and a meeting was conducted on 28.08.2017. The Director of Town and Country Planning reacted on 30.08.2017 and thereafter a survey was supposedly conducted. In the survey, it is noticed that a site of the 4th respondent will be affected along with its eastern edge. However, it is mentioned that in the survey at the entrance of the 80 feet road buildings have cropped up. It is also clearly mentioned that the site of the 4th respondent is vacant. Para 3-A, B and C of the counter affidavit of the 2nd respondent bear testimony to this. Keeping in view the buildings that have cropped up in 'AB' it is stated that the new master plan road has been suggested as 'AA' which would go through the site of that applicant. This is also borne out by a letter dated 01.09.2017 addressed by the Director of Town and Country Planning to the Principal Secretary. This report of 01.09.2017 apparently lead to the letter dated 24.10.2017, by which the Government conveyed its "in principle" approval. This Court notices that the entire exercise is completed in three months time from 21.08.2017 when the 4th respondent made a representation. 11. Thereafter, a publication was made for change in the master plan and objections were invited from the public. Admittedly, the petitioners had submitted their objections. The said objection is filed by the petitioners. 25 people have gone on record and submitted their objections on 23.07.2018. This was followed by another objection dated 16.01.2019. The statute Act 5 of 2015 requires the State to consider the objections filed. The counter affidavit merely states that the objections raised with the enclosures were submitted to the 1st respondent to take further action in para-3J. Thereafter in para-3K it is spelt out that the Government vide letter dated 08.11.2017 requested the 1st respondent to explain the subject matter to the Hon'ble Minister. The matter was discussed and information dated 23.11.2018 was furnished to the Government by which the change was approved. Keeping in view the report of the 2nd respondent also the Government came to the conclusion that the objection should be overruled. Thereafter, a notification dated 20.12.2018 was published. This is filed by the 2nd respondent (pg. 67) of their documents. This G.O.Ms. Keeping in view the report of the 2nd respondent also the Government came to the conclusion that the objection should be overruled. Thereafter, a notification dated 20.12.2018 was published. This is filed by the 2nd respondent (pg. 67) of their documents. This G.O.Ms. No. 411, dated 20.12.2018 is the subject matter in challenge. 12. This Court notices that the receipt of the objection is acknowledged. However, the order passed on the same is not visible anywhere. It is also not mentioned either in the counter affidavits or in the material papers that were filed. 13. What is interesting is that the notice inviting objections on 20.07.2018 is published by the 2nd respondent. The signatory to the notice is the very same officer, who is working as GUDA Chairman, and he has filed the counter affidavit. In the counter affidavit he does not state anywhere that he has considered the objections and disposed of the same. He does not mention when or how the decisions were taken. As per Section 12(2) of Act 5 of 2015 (A.P. Metropolitan Region and Urban Development Authorities Act, 2016), the authority (2nd respondent) can make modifications or revisions to the plan only after considering all the objections, suggestions and representations that have been received. Similarly, as per Section 15(4) also the objections shall be considered before a decision is taken. In the case on hand the 2nd respondent, who has filed his counter, does not state anything about the consideration or the disposal of the representation admittedly submitted by the petitioners and others. Time and again the Hon'ble the Supreme Court of India and other High Courts have repeatedly suggested that when an action has civil consequences the rules of natural justice should be scrupulously followed. The petitioners have submitted their representation, which was received by the respondents. They have raised certain issues which are not answered. It is not even clear what was considered at all. In the objection they have raised an issue about their construction of building after obtaining plans from the panchayat, the investments etc., that the roads were formed and the taxes were being paid. It is also pointed out that the Government will have to pay heavy compensation to the petitioners if their properties are acquired. In the objection they have raised an issue about their construction of building after obtaining plans from the panchayat, the investments etc., that the roads were formed and the taxes were being paid. It is also pointed out that the Government will have to pay heavy compensation to the petitioners if their properties are acquired. While this Court does not wish to state anything about the contents of the representation, it clear that the respondents had a duty to consider the issues raised by the petitioners vis a vis the issue raised by the 4th respondent and then decide the matter by a reasoned and speaking order. The issue about greater loss being caused, that people are living in constructed houses/conducting businesses since long vis a vis a road passing through a vacant site of the 4th respondent should have been weighed before any decision was taken. The need for a four road junction and the disadvantage of a staggered junction is also not borne out by an empirical data showing that the traffic flow/density of traffic were studied. The petitioners properties and their impact on the roads, traffic etc., must have been studied before any recommendation was made. The point urged by the petitioners of the "empty formality" is borne out by the record. 14. In the facts and circumstances of the case and after perusing the counter affidavits filed, particularly of the 2nd respondent, this Court does not find that a reasoned speaking order has been passed in the circumstances. The law on the subject is clear-whenever there is an order, which has civil consequences, there should be a reasoned speaking order. It can be either a separate speaking order or reflected in the impugned order which would enable the petitioners to know why their objection has been rejected. In the case on hand, if the alignment is changed the property of the petitioners will be taken over for the formation of the road. Any person being deprived of his property has a right to be heard, particularly when there are issues raised. This is the essence of Article 300-A of the Constitution of India. Both the counters filed by the 1st and 2nd respondents merely stated that the objections filed were overruled. In para-11 of the counters it is stated that the Government agreed for the realignment overriding the objections and notified the draft alignments. This is the essence of Article 300-A of the Constitution of India. Both the counters filed by the 1st and 2nd respondents merely stated that the objections filed were overruled. In para-11 of the counters it is stated that the Government agreed for the realignment overriding the objections and notified the draft alignments. In the counter filed by the 2nd respondent in paragraph 4(1) it is stated that keeping in view the report of the 2nd respondent the Government has opined that the alignment 'AB' is correct and the draft variation was confirmed overruling the objections. The counters of these officials make it clear that no separate order per se was passed on the issues raised. Today with the counters filed the Court is not in a position to appreciate why the objections were overruled. If the impugned order contained these reasons or a separate order was passed this Court could have better appreciated the decision and the thought process that went into it. The purpose of inviting objections as per the statute will be lost if the objections are not considered in the proper perspective. As per the settled law on the subject the officials had a duty to conduct a proper analysis of the subject, study the data, apply their mind and then come to conclusions. The existence of materials and appreciation of the same are pre conditions for the formation of the opinion. 15. This Court also has found some force in the submission made by the learned counsel for the petitioners about the manner in which the proposal submitted by the 4th respondent was considered and also notes that the publication charges were also collected for publishing the objections from the 4th respondent. This was highlighted by the learned counsel for the petitioners as also the fact the sequence of events show that the matter has moved with the intervention of the then Minister, Municipal Administration also. This Court does not wish to enter this area. 16. The fact that the petitioners were in settled possession for over years, the human and other implications about disturbing their settled possession, the cost implications thereof for vacating the petitioners from their premises etc., are all factors which should have weighed with the officials concerned. This Court does not wish to enter this area. 16. The fact that the petitioners were in settled possession for over years, the human and other implications about disturbing their settled possession, the cost implications thereof for vacating the petitioners from their premises etc., are all factors which should have weighed with the officials concerned. The record does not show that a study of the traffic flow or of the need for a four road junction, the existence of the staggered junction for long and its implication etc., have been studied. As the record is silent on many aspects and as the objection filed is admitted by the respondents, this Court holds that they have not followed the due process/rules of natural justice and have not considered the issues raised. The record does not show the needed application of mind before the orders were passed. Hence, the petitioners are entitled to an order as prayed for. 17. An issue was also raised by the learned counsel for the petitioners about the power of the 2nd respondent in this matter, arguing that the notification was not published under Section 3 of the Act 5 of 2015. The learned counsel for the 4th respondent has filed G.O.Ms. No. 96, dated 15.03.2017 by which the 2nd respondent was conferred the power under the Act 5 of 2015 to take over all the developmental activates of the Rajamahendravaram Municipal Corporation. The petitioners' objection is therefore overruled. 18. With the above observations the Writ Petition is allowed. The impugned G.O.Ms. No. 411, dated 20.12.2018, is hereby set aside. There shall be no order as to costs. 19. Consequently, the Miscellaneous Applications pending, if any, shall stand closed.