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2024 DIGILAW 318 (AP)

Njr Constructions Pvt. Ltd. v. V Jayaram

2024-03-06

DHIRAJ SINGH THAKUR, R.RAGHUNANDAN RAO

body2024
COMMON JUDGMENT R. Raghunandan Rao, J. - Heard Sri K. Rathanga Pani Reddy, learned counsel for the appellants and Sri C. B. Ram Mohan Reddy, learned counsel for respondents 1 to 3. 2. As these two writ appeals arise out of two connected writ petitions and are between the same parties, they are being disposed of by way of this common order. 3. The parties in the present appeals are being described as arrayed in W.P.No.9544 of 2023. 4. The petitioners in the writ petitions are owners of three plots of land admeasuring Ac.23.76 cents, 28.5 cents and Ac.0.49 cents in Sy.Nos.717/2, 727/1 and 731/P of Moolasagaram village, Nandyal municipality. The 5th respondent was the owner of certain extent of land on the northern side of these three plots and had also purchased about 9 % cents in Sy.No.727/1 from the 1st petitioner in the writ petition. The 5th respondent applied and obtained building permission dated 25.02.2021 for construction of an apartment complex by contending that the road on the western side of the property of the 5th respondent was 33 feet wide. The 5th respondent also gifted the land admeasuring Ac.9.5 cents to the Nandyal Municipality for the purpose of ensuring that the width of the road increases to 40 feet. The petitioners, being aggrieved by such permission, had filed W.P.No.7332 of 2023 seeking a direction to the Director of Town and Country Planning to revoke the building permissions. W.P.No.7276 of 2021 was also filed for a direction to the Director of Town and Country Planning to lay a road in accordance with the layout plan bearing T.P.No.20/1980. During the pendency of these writ petitions before this Court, the building permission was cancelled by an order dated 28.08.2021. Aggrieved by the same, the 5th respondent filed W.P.No.23022 of 2021. The entire controversy in these three writ petitions was on the question of the width of the road on the western side of the property of the 5th respondent. It was the contention of the 5th respondent that the said road was 40 feet wide and in any event was 40 feet wide along the entire length of the property of the 5th respondent. It was the contention of the 5th respondent that the said road was 40 feet wide and in any event was 40 feet wide along the entire length of the property of the 5th respondent. The petitioners, on the other hand, contended that the road was not 40 feet wide and was only about 16 feet wide at certain places and roughly 23 feet or so at other places and the requirement that the entire road should be 40 feet wide had not been complied, due to which the building permission given to the 5th respondent should be revoked. 5. This Court, with a view to resolve this dispute, had directed the Director of Town and Country Planning to depute a surveyor for measuring the width of the road at various points. Accordingly, a survey was conducted and a survey plan was produced before the Court. This survey plan showed that the road in question had a north-south alignment wherein the width of the road from the southern side up to the property of the 5th respondent was not more than 20 feet wide and the road expanded to a width of 40 feet along the property belonging to the 5th respondent. This Court, after recording the said width of the road, had set aside the cancellation order, dated 28.08.2021, with a direction to the Director of Town and Country Planning to pass fresh orders on the building permission given to the 5th respondent, after taking into account the width of the road shown in the survey plan submitted to the Court. 6. In pursuance of the directions of this Court, the Director of Town and Country Planning, after due consideration, directed the Kurnool Urban Development Authority, by proceedings dated 25.02.2023, to cancel the building permission given to the 5th respondent. Consequently, the Kurnool Urban Development Authority cancelled the provisional building permission granted in favour of the 5th respondent on 21.03.2023. 7. In a parallel proceeding, the Commissioner, Nandyal Muncipality, had suo moto initiated an in principle Layout pattern, expanding the width of the road to 33 feet and the same was approved by the Director of Town and Country Planning on 16.03.2023. The said approval is said to have been given on the basis of G.O.Ms.No.10 dated 08.01.2020. 7. In a parallel proceeding, the Commissioner, Nandyal Muncipality, had suo moto initiated an in principle Layout pattern, expanding the width of the road to 33 feet and the same was approved by the Director of Town and Country Planning on 16.03.2023. The said approval is said to have been given on the basis of G.O.Ms.No.10 dated 08.01.2020. The 5th respondent, again made an application to the Nandyal municipality on 26.04.2023 with the contention that the approach road was now a 33 feet wide road. 8. Thereupon, a building permission was again granted to the 5th respondent, under permit No.1017/0425/B/NAM/SN/2021 dated 05.05.2023. 9. Aggrieved by the approval of the IPLP dated 16.03.2023, the writ petitioners moved W.P.No.9544 of 2023 for setting aside the said IPLP dated 16.03.2023. The petitioners also filed W.P.No.12320 of 2023 for setting aside the building permission granted on 05.05.2023 in favour of the 5th respondent. Both these writ petitions were disposed of by the Learned Single Judge by way of two separate orders dated 31.01.2024. 10. The Learned Single Judge took up the question of approval of the IPLP dated 16.03.2023 and set aside the same. The Learned Single Judge, then disposed of W.P.No.12320 of 2023 by setting aside the building permission on the ground that the said building permission requires to be cancelled as the approach road would be less than the required width. 11. Aggrieved by these two orders, the 5th respondent has filed the present writ appeals. 12. It was contended before the Learned Single Judge that G.O.Ms.No.10 dated 08.01.2020 permitted layout regularizations and an IPLP was recommended by the Nandyal municipality on 09.02.2023 which came to be approved by the Director of Town and Country Planning on 16.03.2023. It was contended that such approval could not have been given as applications for layout regularization could have been filed only up to 31.12.2020 and recommendation by the Nandyal municipality on 09.02.2023 is after the cut-off date 31.12.2020 and could not have been made. It was further contended that the writ petitioners have submitted objections to approval of such IPLP. However, such objections were not considered. The Learned Single Judge accepted these contentions and held that the approval of IPLP, on 16.03.2023 was beyond the time set out under G.O.Ms.No.10 dated 08.01.2020. It was further contended that the writ petitioners have submitted objections to approval of such IPLP. However, such objections were not considered. The Learned Single Judge accepted these contentions and held that the approval of IPLP, on 16.03.2023 was beyond the time set out under G.O.Ms.No.10 dated 08.01.2020. The Learned Single Judge also held that the Nandyal municipality had not considered the objections of the petitioners and consequently suo moto jurisdiction exercised by the Commissioner, Nandyal municipality is tainted with illegality and it was violative of principles of natural justice and also a colourable exercise of power. On the basis of these findings, the approval of IPLP dated 16.03.2023 by the Director of Town and Country Planning was set aside. Costs of Rs.10,000/- was also levied on the Commissioner of Nandyal municipality. 13. Sri C.B. Ram Mohan Reddy, learned counsel appearing for the writ petitioners would submit that the IPLP is said to have been moved, suo moto, by the Commissioner of Nandyal municipality. Such a suo moto action could have been taken only for public purpose and there is no such public purpose that is discernable in the present case. He would submit that the road in question is a dead end road which ends with the property of the 5th respondent. In such a case, expansion of the road or widening of the road to 33 feet or 40 feet would not in any manner attract the principles of public good or public interest. He would further submit that the Rules issued under G.O.Ms.No.10 specifically provide for a cut-off date and in the present case, the entire exercise commenced more than two years after the cut-off date had passed. He would submit that the Learned Single Judge had rightly observed this fact and set aside the order of approval and consequently, the building permission granted to the 5th respondent. 14. Sri Ratangapani Reddy, learned counsel appearing for the appellants, on the other hand, would submit that the writ petitioners had, throughout the litigation, portrayed their plots as being part of an approved layout when there was no approval for the said plots in any layout. He would submit that the writ petitioners by suppressing these facts had claimed that the IPLP was not necessary as it is not regularization of any unauthorized layout. He would submit that the writ petitioners by suppressing these facts had claimed that the IPLP was not necessary as it is not regularization of any unauthorized layout. He would submit that the IPLP was initiated by way of suo moto proceedings of the Commissioner of Nandyal municipality specifically in view of the directions sought from this Court in W.P.No.7276 of 2021. He would contend that the said IPLP was not prepared at the behest of the 5th respondent but was prepared in order to regularize the width of the street as required under the guidelines. 15. The width of the road is 40 feet along the property of the 5th respondent and reduces to about 16 feet to 23 feet for the remaining length of the road. The IPLP approved on 16.03.2023 would result in a widening of the road to 33 feet along the length of the road and to 40 feet along the road before the property of the 5th respondent. The contention of the 5th respondent is that the regulations require the approach road to be 33 feet wide when construction in the plot does not exceed a height of 15 meters. He would submit that the building permission sought by the 5th respondent was for construction of a 15 meters high building and subsequently, the 5th respondent had constructed another floor by utilizing the TDR bonds and in such circumstances, the width of the road required for building approvals to be given to the 5th respondent is only 33 feet. Consideration of the Court: 16. It is the case on all sides that the permission for the building, which has been constructed by the 5th respondent, requires an approach road which is at least 33 feet wide. The IPLP, approved by the Director of Town Planning, widens the approach road to 33 feet. Consequently, the Building permission granted by the Nandyal Muncipality in permit No.1017/0425/B/NAM/SN/2021 dated 05.05.2023 would be valid. However, the approval of the IPLP is under challenge and the fate of the building permission rests on the outcome of the said challenge. 17. The case of the writ petitioners is that the approval given to the IPLP is bad for the following grounds: (i). However, the approval of the IPLP is under challenge and the fate of the building permission rests on the outcome of the said challenge. 17. The case of the writ petitioners is that the approval given to the IPLP is bad for the following grounds: (i). The approval, said to have been given under the provisions of G.O.Ms.No.10, could not have been given as the process for such approval was initiated after the cut-off date, for such initiation, had expired long back. (ii). The process was initiated, suo moto, by the commissioner Nandyal Muncipality and such initiation was bad as public interest, which is the sine qua non for such initiation, was absent. (iii). The suo moto initiation was a mala fide action, at the behest of the 5th respondent and has been done only to benefit the 5th respondent. (iv). The suo moto proceedings were initiated and completed without giving an opportunity to the writ petitioners to put forth their objections and as such the proceedings suffer from violation of principles of natural justice. 18. The Andhra Pradesh Regularisation of Unapproved Layouts and plots Rules (hereinafter referred to as 'Rules') had been issued under G.O.Ms.No.10, dated 08.01.2020 for the purpose of regularization of unapproved layouts and plots. Rule 2 (2) stipulates that the Rules would be applicable to all plots which were registered prior to 31.08.2019. In the present case, all the plots under consideration had been alienated from time to time and the first of such alienations is prior to 31.08.2019. 19. Rule 5 required applications for regularization of plots/layouts to be done within 90 days from the date of notification of the rules issued under G.O.Ms.No.10. This cut-off date, for submission of applications, was extended from time to time till the end of 2021. It is contended that as the regularization process, in the case of the land in which the plots of the petitioners are situated, commenced only after the said cut-off date, the municipal authorities could not have initiated any proceedings under the Rules. 20. This contention has to be considered in terms of Rule 8. In this rule, it was stipulated that regularization of layout patterns can be done by the competent authority either by receipt of an application from the owners or on the basis of layouts identified and prepared suo moto by the sanctioning authority. 20. This contention has to be considered in terms of Rule 8. In this rule, it was stipulated that regularization of layout patterns can be done by the competent authority either by receipt of an application from the owners or on the basis of layouts identified and prepared suo moto by the sanctioning authority. The cut-off date for filing applications for regularization was stipulated in relation to the applications made by owners of the land. No such cut-off date has been fixed for suo moto consideration and preparation of layout patterns by the municipal authorities. Consequently, the suo moto proceedings initiated by the municipal authorities would not be controlled by the eligibility criteria set out under Rule 5. The initiation of identification and preparation of layout by the Nandyal municipal corporation, in the year 2023, would not fall foul of the requirement of Rule 5 that applications have to be filed within 90 days from the date of issuance of G.O.Ms.No.10. 21. A perusal of the material placed before this Court shows that the Nandyal Muncipality had released a draft master plan, prepared by the Kurnool Urban Development Authority, proposing a 9 metre wide road on the western side of the properties of the writ petitioners, in survey No. 727/1. On 21.12.2022, one of the writ petitioners had submitted an objection to the draft master plan. The writ petitioners took two objections. The first objection was that there was no need for such a wide road as the roads in the neighborhood were more than sufficient to serve the needs of the people in the area. The second objection was that Layout permission L.P.No. 61/01, given in relation to the neighbouring land in survey no. 727/2 had erroneously shown the said road as a 33ft wide road, though only 16 ft had been left for the road in survey no. 727/2 and the remaining width of 17 feet could not be adjusted out of the land in Survey No. 727/1, in which their land was situated. Subsequently, one of the writ petitioners also gave a letter dated 06.01.2023 to the Director of Town and Country Planning to ensure that there was no formation of road with 33 feet width. 22. 727/2 and the remaining width of 17 feet could not be adjusted out of the land in Survey No. 727/1, in which their land was situated. Subsequently, one of the writ petitioners also gave a letter dated 06.01.2023 to the Director of Town and Country Planning to ensure that there was no formation of road with 33 feet width. 22. The Director of Town and Country Planning had passed an order bearing No.19024/219/2020/ATR-RGN DOTCP, dated 19.01.2023, which was communicated to the Commissioner, Nandyal municipality and Vice-Chairman, Kurnool Urban and Development Authority. In this order dated 19.01.2023, the Director of Town and Country Planning stated that Layout Permission No.61/2001 of Srinivasa Nagar House Building Society had shown a 33 feet wide road, consisting of 16.5 ft in the land falling within L.P.No. 61/01 land and the remaining 16.5 feet falling on the land outside the land forming part of L.P.No. 61/01. The land to the east of this 33 feet wide road was the land belonging to the writ petitioners and the 5th respondent. The Director of Town and Country Planning then observed that though the said layout plan provided for a 33 feet road, the actual width of the road is much lesser than 33 feet and the writ petitioners while sub-dividing the land among them into four equal parts of 9.5 cents had not mentioned the road. It was only in the sale deed executed in favour of the 5th respondent that the boundary on the western side was described as a road, without giving the specific width of the said road. The Director of Town and Country Planning directed the Commissioner, Nandyal municipality to verify whether the formation of a 33 feet wide road, as approved in LP.No.61/2001 has taken place on ground and if such road is not available, to implement the said road on ground duly following the procedure as laid in the prevailing Acts and Rules, in the larger interest of the public. The Director of Town and Country Planning also directed that the building permission obtained by the 5th respondent on 25.02.2021 by claiming that there is a 33 feet wide approach road be cancelled. This order essentially contained two directions. The Director of Town and Country Planning also directed that the building permission obtained by the 5th respondent on 25.02.2021 by claiming that there is a 33 feet wide approach road be cancelled. This order essentially contained two directions. Firstly, the Commissioner, Nandyal municipality was required to ensure that 33 feet wide road mentioned in L.P.No.61/2001 is implemented on the ground and secondly to cancel the building permission given to the 5th respondent on the ground that the necessary 33 feet approach road was not available. 23. It appears that in pursuance of this direction dated 19.01.2023, the Vice-chairman, Kurnool Urban and Development Authority, by proceedings dated 21.03.2023 cancelled the provisional building permission given to the 5th respondent. 24. Simultaneously, the Commissioner, Nandyal municipality, in pursuance of the order dated 19.01.2023, initiated steps for a suo moto regularization of the unapproved layout of the writ petitioners. This regularization included the standardization of the width of the approach road along the western side of the property of the writ petitioners and the 5th respondents to a width of 33 feet. This proposal was approved by the Director of Town and Country Planning by proceedings dated 16.03.2023. These proceedings can not be treated as a mala fide exercise of power for benefitting the 5th respondent. 25. The record, as seen above, reflects that the proceedings for cancellation of the provisional building permission given to the 5th respondent as well as the proceedings to suo moto regularize the unauthorized layout of the plots of the writ petitioners and the 5th respondent, originated from the same order dated 19.01.2023. 26. The contention that the writ petitioners were not given an opportunity to object to the IPLP is incorrect. The writ petitioners were fully aware of the fact that steps were being taken to incorporate the width of the road to 33feet, in the master plan and had raised their objections to the same. The petitioners had also sought a post facto hearing on the approval of the IPLP, by way of their letter dated 29.03.2023. In this letter the writ petitioners specifically mention the proceedings of the Director of Town and Country Planning, dated 19.01.2023, wherein the Commissioner, Nandyal Muncipality was directed to ensure that the road is 33 feet wide in the layout plans so as to be in accord with the master plan. 27. In this letter the writ petitioners specifically mention the proceedings of the Director of Town and Country Planning, dated 19.01.2023, wherein the Commissioner, Nandyal Muncipality was directed to ensure that the road is 33 feet wide in the layout plans so as to be in accord with the master plan. 27. For all the afore said reasons, the writ appeals are allowed, setting aside the Judgement of the Learned Single Judge, dated 31.01.2024, in W.P. 12320 of 2023 and W.P.No.9544 of 2023. There shall be no order as to costs. As a sequel, pending miscellaneous petitions, if any, shall stand closed.