Atluri Vijaya Babu vs The State Of Ap
2021 Latest Caselaw 2574 AP

       HON'BLE SRI JUSTICE M.SATYANARAYANA MURTHY


                  WRIT PETITION NO.6761 OF 2021

ORDER:

One Atluri Vijaya Babu (Petitioner No.1), Atluri Venkata

Subash Babu (Petitioner No.2) along with Nalanda Estates Private

Limited filed this writ petition under Article 226 of the Constitution

of India, questioning the action of the respondents in withholding the

application of the third petitioner for building permission vide BA

No.1168/1532/B/PMLR/PRNK/2017 dated 19.05.2017 under the

guise of Andhra Pradesh Gazette Extraordinary No.850 dated

31.10.2018 issued for the proposed Inner Ring Road (IRR) as illegal,

arbitrary and violative of Articles 14, 19(1)(g) and 300-A of the

Constitution of India and contrary to the principles of natural justice

and consequently to set-aside the same and direct the respondents

to either sanction the third petitioner application vide BA

No.1168/1532/B/PMLR/PRNK/2017 dated 19.05.2017 or take

steps to acquire the subject property under the applicable land

acquisition law in vogue.

The brief facts of the case are that, Petitioner Nos. 1 & 2 along

with others are the land owners to an extent of Ac.1-20 cents in

Sy.No.479/3, Ac.0-40 cents in Sy.No.480/1C, Ac.0-28 cents in

Sy.No.480/2C and Ac.0-07 cents in Sy.No.481/4 of Poranki Village

and Panchayat, Penamaluru Mandal, Krishna District, (herein after

referred as 'subject property' for convenience).

Petitioner Nos. 1 & 2 intended to construct educational

institute/school building in the subject property and offered the

same to the third petitioner for development on mutually agreed MSM,J WP_6761_2021

terms and conditions, finally entered into Development Agreement on

10.11.2017 recording all the terms and conditions.

The third petitioner - company, in consonance with the

Development Agreement approached the second respondent/

Commissioner, AMRDA, vide BA No.1168/1532/B/PMLR/

PRNK/2017 dated 19.05.2017 for constructing an educational

institute/school building by paying requisite fee.

As per the plan submitted, the total built up area is 5805.85

sq.mts as one single block with cellar and four floors. The third

petitioner - company has complied with the mandatory requirements

for obtaining the building permission. Further, it is contended that,

as per AMRDA Zoning Regulations, the schedule property falls within

public use zone and the petitioners are entitled to construct school

building in the said property without any hindrances or conversion

procedures.

It is contended that, as per Section 110 of Capital Region

Development Act, 2014 (Repealed Act), the third petitioner -

company applied to the second respondent for obtaining building

permission. As per the said provision, the Commissioner shall

examine the plan submitted and he may accept unconditionally or

conditionally or may refuse the same within sixty (60) days. If, the

second respondent fails to accept or refuse the application within

such time, the said application for development shall be deemed as

accepted. The third petitioner - company has applied for the

approval of plan on 19.05.2017 and the second respondent by

18.07.2017 must either have accepted or refused the said

application of the petitioners. however, as the proposed building is

intended to be used as school building, as it involves thousands of MSM,J WP_6761_2021

students future, the petitioners refrained from progressing with the

development activities, taking cue from deeming provision and

diligently waited for the second respondent to give its accord and

asatisfaction in the form of building permission approval

proceedings. It is submitted that, Section 110 of CRDA Act (Repealed

Act) is replaced by Section 84 of AMRDA Act, the law applicable to

Amaravati Region as per CRDA Repeal Act No.27 of 2020. Further,

the petitioners requested the second respondent several times to

release the approved building permission and the second respondent

officials dodged the same on one pretext or the other for the past

three years and recently, when the third petitioner- company staff

insisted the second respondent to take a decision on the permission

application dated 19.05.2017, the second respondent officials

informed the third petitioner - company that subject property/

building is falling within the alignment of the proposed Inner Ring

Road and therefore, permission for the construction cannot be

accorded.

On enquiry, it was revealed that, the second respondent

intended to develop Inner Ring Road for capital region. Accordingly,

alignment of draft IRR was prepared and approved on 08.02.2017,

final draft alignment was approved on 12.02.2018. Pursuant to the

Gazette Notification, published noticed in daily newspaper, notices

were given on 17.02.2018 calling for objections/suggestions from the

public for a period of 30 days from the date of notification i.e.

18.03.2018. After considering all the objections and suggestions to

the draft plan, Respondent Nos. 1 & 2 issued Andhra Pradesh

Gazette Extraordinary No.850 dated 31.10.2018 confirming the draft

master plan for the said IRR. It is submitted that the survey MSM,J WP_6761_2021

numbers in which the subject property is situated is forming part of

the said gazette notification, however it was unclear as to what

portion of the subject property is under the alignment of the

proposed IRR.

It is contended that, since the date of confirmation of the said

master plan for the IRR vide Gazette Notification dated 31.10.2018,

till date Respondent Nos. 1 & 2 did not take any steps to acquire the

land under the alignment of IRR either in part or in full, considering

the present controversy. As such, the petitioners requested the

second respondent to approve the plan submitted by the third

petitioner - company vide application dated 19.05.2017, but no

action was taken.

In response to the application filed under Right to Information

Act, 2005 by one Mr. Lavu Shashank, the authorities gave the

following information:

S.No   Information Sought          Remarks
1      IRR proposal still in force Inner Ring Road Plan and extension of
       or not                      27 capital city roads to draft inner ring
                                   road plan in APCRDA region was
                                   notified vide Andhra Pradesh Gazette
                                   extraordinary no.850 dated 31.10.2018.
2      If not in force can we      Inner Ring Road Plan and extension of
       proceed     with      the   37 capital city roads to draft inner ring
       submitted     plans    in   road plan in APCRDA region was
       R.S.No.479/3,     480/1C    notified vide Andhra Pradesh Gazette
       and 480/2C of Poranki       extraordinary        No.850        dated
       Village.                    31.10.2018.
3      If IRR is still in force, how From the notified plan, the extent of

much of land I am going land affected under IRR tentatively is in to lose and how much will be left in RS No.479/3, 480/1C and 480/2C. In 1) RS No.479/3 - 2.6815 acres a nut shell how much 2) RS No.480/1C - 0.1728 acres land exactly are you going

3) RS No.480/2C - Not passing to acquire with exact through IRR specifications of the plan, so that I can go ahead with left out area for construction.

MSM,J WP_6761_2021

4 What is the present Inner Ring Road plan and extension of status of IRR proposal 27 capital city roads to draft inner ring and kindly provide any road plan in APCRDA region was IRR approved G.O's if notified vide Andhra Pradesh Gazette available extraordinary No.850 dated 31.10.2018.

5 IRR detailed plans are Extracts of the IRR plan enclosed.

        prepared    or   not.   If
        prepared provide plan
        copy of RS No.479, 480 of
        Poranki    Village    and
        surrounding radius

Despite pendency of proposal for Inner Ring Road, the land

was neither acquired nor permission was granted to this petitioner.

Therefore, keeping the building application pending for such a long

time is contrary to the provisions of APCRDA Act, APMR&UDA Act,

2016.

As per Section 95 of Andhra Pradesh Metropolitan Region and

Urban Development Authorities Act, 2016, Any land required,

reserved or designated in the Perspective Plan [PP] or Master Plan

[MP] or Infrastructure Development Plan [IDP] or Area Development

Plan or Zonal Development Plan or Land Pooling Scheme [LPS] or

Town Planning Scheme [TPS] or a Development Scheme shall be

deemed to be the land needed for public purpose within the meaning

of the Right to Fair Compensation and Transparency in Land

Acquisition, Rehabilitation and Resettlement Act, 2013 (Act No. 30 of

2013) and may be acquired by the Government on the request by the

Authority or other authority or functional unit.

It is submitted that the petitioners incurred huge amount

towards stamp duty paid towards the Development Agreement dated

10.11.2017, development fee paid to the second respondent

authority on building application submitted, fee paid to the

architects for the designs of the school building proposed to be MSM,J WP_6761_2021

constructed on subject property. The third petitioner - company in

which the first petitioner is a Director had obtained all necessary

authorization from the authority concerned i.e. International

Baccalaureate for conducting classes by admitting students for

primary year programme under the name of Bloomingdale as early as

on 01.03.2016 by which time all the building designs were submitted

and the ground breaking ceremony is completed. Though the

construction is supposed to begin in 2017 and complete by January,

2018. On account of delay, the petitioners are put to serious loss and

thereby, the inaction of the respondents in withholding the

application of the third petitioner for building permission vide BA

No.1168/1532/B/PMLR/PRNK/2017 dated 19.05.2017 under the

guise of Andhra Pradesh Gazette Extraordinary No.850 dated

31.10.2018 issued for the proposed Inner Ring Road (IRR) as illegal,

arbitrary and therefore, the petitioners sought the relief as stated

supra.

The second respondent filed counter affidavit, admitting about

issue of notification for acquisition of property for Inner Ring Road

Project and pendency of the execution of project. The second

respondent denied the ownership of the subject land of Petitioner

Nos. 1 & 2 and that, the second respondent never received building

application vide BA No.1168/1532/B/PMLR/PRNK/2017 dated

19.05.2017 for construction of RCC roof, cellar, ground and 4 floors

in Sy.No.479/3, 480/1C and 480/2C situated at Poranki Village and

the same is lying with the Licensed Technical Personnel (LTP), who is

appointed by the petitioners.

The second respondent specifically contended that, the

petitioner never forwarded any application for scrutiny and the MSM,J WP_6761_2021

present writ petition is filed with an ulterior motive by suppressing

the facts. The second respondent also denied that the building

approval could not be granted as the property falls within alignment

of proposed Inner Ring Road and as such plans are to be in

accordance is denied. The Inner Ring Road was proposed in the year

2017 before the alleged application of the petitioners and the same

was approved vide Gazette No.850 dated 31.10.2018. Though the

permissions are subject to expansion of Inner Ring Road, the

petitioners file was not received and hence approval or rejection does

not arise. The respondents further contended that, there was no

inaction on their part.

It is specifically contended that, in the year 1998, a resolution

was passed by panchayat secretary for formation of road on

15.04.1998 and the same was laid with Janmabhoomi grants of

Rs.2,00,000/-. The said road was shown as part of petitioners land

in the building application. Further, the locals have decided for

formation of 33' road for their easement access and the same was

ratified by the then Village Panchayat Secretary.

Earlier, W.P.No.23384 of 2017 was filed to consider the

representations against the petitioners before granting permissions

to the petitioner and the same is pending. There are still various

complaints by the locals against the petitioner for encroaching the

existing 33' road which was laid by their contribution and once a

road is formed, the same vests with local authority. Therefore, the

petitioners are not entitled to claim any relief in the writ petition and

requested to dismiss the writ petition.

The petitioners filed rejoinder to the counter affidavit denying

the averments made in the counter affidavit, while contending that MSM,J WP_6761_2021

the building permission cannot be rejected or withheld on the ground

that the proposed road or proposed constructions when the same

has not yet been notified in Gazette Notification. (vide Channavajala

Vijaya Lakshmi v. State of Telangana 1 ). In the instant case,

building permission was arbitrarily withheld for eight months even

when there was no notification of the alignment of Inner Ring Road.

Further, upon notification, the respondent authorities must have

acquired the land by paying due compensation. The respondents

filed counter affidavit in W.P (PIL) No.179 of 2019 admitting the fact

that they do not have sufficient funds to carry out any works in

CRDA region and failure to grant permission to the petitioners to

build school, amounting to deprivation of petitioners valuable right

to property and it amounts to violation of constitutional right

guaranteed under Article 300-A of the Constitution of India. The

petitioners specifically denied the allegations made in the counter

affidavit and requested to allow the writ petition.

The petitioners filed material along with the writ petition,

whereas, the second respondent filed counter affidavit along with

certain documents, by uploading the additional material on

08.07.2021.

During hearing, Sri B. Adinarayana Rao, learned senior

counsel appearing for the petitioners contended that, when the

building application was submitted by complying all formalities, it is

the duty of the second respondent to sanction plan or reject it. But,

keeping it pending on the pretext that, Inner Ring Road project is

pending without acquiring land is nothing but depriving these

petitioners to enjoy the property as per their convenience, which is

2015 (5) ALT 620 MSM,J WP_6761_2021

violative of Article 300-A of the Constitution of India, as the

petitioners were deprived of enjoying their property. at the same

time, it is the duty of the second respondent either to reject or grant

permission to these petitioners on the building application within the

stipulated time. But, for one reason or the other, the second

respondent invented a different story that no such application was

received from the petitioners and it is pending with Licensed

Technical Personnel (LTP) appointed by these petitioners, which is

not true, as the building application was scrutinized by the

authorities of the second respondent and screenshot is placed on

record in support of it. Finally, learned Senior Counsel requested to

issue a direction as claimed in the writ petition.

Whereas, Sri Kasa Jagan Mohan Reddy, learned Standing

Counsel appearing for the second respondent would contend that,

when no building application was received by the office of the second

respondent, question of processing the same by the second

respondent does not arise and in the absence of any application,

conduct of the respondents cannot be faulted. However, as per the

material produced by the respondents, the application of the third

petitioner is pending with Licensed Technical Personnel (LTP), but

not before the office of the second respondent. Therefore, the

allegation that the second respondent did not process the building

application of the petitioners and failed to proceed with the

acquisition of the property is neither true nor correct, therefore, the

petitioner cannot compel the respondents to acquire the property.

Apart from that, 33' feet road was already laid by the panchayat, but

the petitioners encroached the said road, which is shown as part of

the road, as alleged in the counter affidavit. Therefore, the petitioners MSM,J WP_6761_2021

are not entitled to claim any relief in the writ petition and requested

to dismiss the writ petition at the stage of admission itself.

Considering rival contentions, perusing the material available

on record, the point that arises for consideration is:

"Whether the action of the respondents in withholding building application No.1168/1562/ B/PMLR/ PRNK/2017 dated 19.05.2017 is against Section 110 of APCRDA Act or Section 84 of AMRDA Act and failure to acquire the property after issuing Andhra Pradesh Gazette Extraordinary No.850 dated 31.10.2018 is illegal, arbitrary and violative of Article 300-A of the Constitution of India. If so, whether a direction be issued to complete the process of building application No.1168/1562/B/PMLR/ PRNK/2017 dated 19.05.2017 or in the alternative to acquire the property in pursuance of Andhra Pradesh Gazette Extraordinary No.850 dated 31.10.2018?

P O I N T:

The ownership of these Petitioner Nos. 1 & 2 with Petitioner

No.3 is not required to be adjudicated by this Court, in view of the

limited scope of dispute in this writ petition, though the second

respondent denied the very ownership of these petitioners at one

stage. the consistent case of these petitioners from the beginning is

that, Petitioner Nos. 1 & 2 are the owners and they entered into

Development Agreement with Petitioner No.3, who in-turn applied for

grant of building permission by complying all formalities and by

paying necessary fees for sanction of plan etc. In support of their

contention, they placed on record, building application

No.1168/1562/B/PMLR/PRNK/2017 dated 19.05.2017. When an

application is uploaded to the website of the second respondent, the

application number will automatically be generated and therefore,

the very generation of building application number

No.1168/1562/B/PMLR/PRNK/2017 dated 19.05.2017 is sufficient MSM,J WP_6761_2021

to conclude that Petitioner No.3 submitted an application seeking

permission of sanction building plan and permission to construct

school. Receipt No.1168/CH/4209/2017 dated 15.05.2017

evidencing payment of Rs.10,000/- by online vide Transaction ID

No.201793 is another additional factor to conclude that application

was submitted by Petitioner No.3. Memo No.1168/CH/4209/2017

dated 13.05.2017 also supports the case of Petitioner No.3 that

building application was submitted by Petitioner No.3. But, the

second respondent filed material papers to show that the application

is pending with Licensed Technical Person and produced a screen

shot to show that the application of Petitioner No.3 is returned to

rectify the plan. The queries mentioned by the concerned officer are

filed along with additional material of the second respondent are as

follows:

Designation    Date             Remarks
Town           05/06/2020       Document refusal site visit refusal technical
Planning       05:45 PM         refusal.
Officer

Building       05/06/2020       Applicant may be informed to rectify the
Inspector      05:34 PM         plans as per the documents and upload the
                                attested copies of the same by LTP and
                                owner. Further, applicant has to handover
                                RAP to the gram panchayat through
                                registered gift deed and submit letter from
                                panchayat for that effect.
Town           05/06/2020       Please put shortfalls in PDF plans & BA
Planning       05:01 PM         form tabs in documents
Officer
Building       05/06/2020       The measurements shown in the submitted
Inspector      01:10 PM         plans are not tallying with measurements
                                shown in the schedule of the ownership
                                documents submitted. Hence, the applicant
                                may be informed to rectify the plans as per
                                the documents. Applicant has to handover
                                RAP to the gram panchayat.

The remarks column in the above table is itself sufficient to conclude

that an application was submitted by Petitioner No.3. If, really, no

application was submitted by Petitioner No.3, the question of giving MSM,J WP_6761_2021

opinions to rectify the plans as per the documents or to show correct

measurements does not arise. Apart from the above material, the

allegation that 33' feet road laid with Janmabhoomi funds by the

villages also show as part of the land for proposed construction.

Therefore, the contention that, no such application was submitted by

Petitioner No.3 for grant of building permission is false on the face of

record. Thus, the respondents stooped to the extent of denying the

very submission of application, though the document produced by

the second respondent clinchingly established that Petitioner No.3

submitted an application for approval of the plan and grant of

permission for construction of school building. Therefore, the

contention of the learned Standing Counsel appearing for the second

respondent that, no building application was submitted is hereby

rejected.

When a building application was submitted seeking permission

to construct a building, it is the obligation of the second respondent

either to grant permission or to return the application for compliance

or reject the permission, within sixty days in terms of Section 110 of

CRDA Act or Section 84 of AMRDA Act, which is substituted for

CRDA, on its repeal. Therefore, Section 110 of CRDA Act is in pari

materia with Section 84 of AMRDA Act. But, the second respondent

neither granted permission nor returned the application till

05.06.2020, though the application was submitted on 19.05.2017.

Thus, the inaction of the second respondent is arbitrary and illegal.

The second bone of contest is that, the land in which the

petitioners are proposing to construct school building is falling MSM,J WP_6761_2021

within the Inner Ring Road alignment. If, really, the land is falling

within the Inner Ring Road alignment, in terms of Gazette

Notification dated 17.02.2018, keeping it pending for the last three

years without acquiring any land, indirectly refusing to grant

building permission on the ground that it is within the alignment

zone of Inner Ring Road is illegal on the face of it.

It is contended that, when a private property is shown in the

development plan and when application for construction of building

by its own was submitted, keeping the application pending without

any reasonable cause is illegal. In support of his contention, learned

Senior Counsel appearing for the petitioners placed on record the

judgment of Hon'ble Supreme Court in Raju S. Jethmalani v. State

of Maharashtra 2 . In the facts of the above judgment, Plot No. 438

belonged to private person and was shown as a garden in the

development plan of 1966. No effort was made by Municipal

Corporation or Government to acquire this plot for purpose of

developing it as a garden. When it was not acquired for the purpose

of garden owner of this land the appellants moved Government for

de-reserving. Government after resorting to necessary formalities de-

reserved land by the impugned notification, all procedures required

under 1966 Act were observed and notification was issued inviting

objections against de-reservation. Reservation had lapsed due to lack

of funds, had not taken any step to acquire land within the

stipulated statutory period. Hence, the land which is earmarked

earmarked for a particular purpose namely to promote

environmental exigencies can it be de-reserved if not acquired by

(2005) 11 SCC 222 MSM,J WP_6761_2021

state within stipulated time for the said purpose, was the question

before the Apex Court.

The Apex Court, while referring to various provisions of

Bombay Town Planning Act, 1954, Maharashtra Regional and Town

Planning Act, 1966, concluded that the Municipality has to sanction

the plan in terms of Municipalities Act, if the application complies

the formalities.

Similarly, in Channavajala Vijaya Lakshmi v. State of

Telangana (referred supra), the learned Single Judge of High Court

of Telangana held that, building permission cannot be rejected or

withheld on the ground that the proposed road or proposed

constructions when the same has not yet been notified by Gazette

Notification.

In view of the law declared by the Apex Court in Raju S.

Jethmalani case (referred supra), keeping the building application

pending ad infinitum on the ground that private land was identified

for park for public use, as an illegality and keeping the application

for building permission pending without any reasonable or justifiable

cause is contrary to the law laid down therein. In the present facts of

the case, though the third petitioner made application vide BA

No.1168/1532/B/PMLR/PRNK/2017 dated 19.05.2017, process of it

is not completed. But, it appears that in the year 2020, it was

returned for compliance of objections, in view of the screenshot

produced before this Court by the learned Standing Counsel for the

second respondent. It is not known whether the application was

represented after compliance of objections by the third petitioner. If MSM,J WP_6761_2021

the petitioner re-presented the application for building permission, it

is the duty of the second respondent authorities to complete the

process within sixty (60) days from the date of its re-presentation in

terms of Section 110 of CRDA Act or Section 84 of AMRDA Act. But,

here the second respondent did not complete the process for granting

permission to the third petitioner for construction of building, which

is contrary to the law laid down by the Apex Court in the judgment

referred supra. On this ground alone, the inaction of the second

respondent in not completing the process of application for grant of

building permission to construct a building be declared as illegality.

At the same time, this Court in Channavajala Vijaya Lakshmi

v. State of Telangana (referred supra) held that, when a building

application was made, keeping it pending for indefinite period on the

ground that the property is likely to be issued for acquisition is not a

ground. Thus, the failure of the second respondent to complete the

process of application for building permission is a grave illegality

committed by the second respondent.

Though the land is proposed to be acquired and notification is

issued on 18.03.2018 for Inner Ring Road and the land of these

petitioners is also covered by the notification, in such case, the

respondents may complete the process of acquisition, so as to enable

the these petitioners to take appropriate steps to secure alternative

premises or to de-notify the land within a reasonable time. But,

simply, the second respondent issued notification for acquiring the

land of the petitioners along with the land of others under the

Gazette Notification dated 18.03.2018. But, till date, it was not MSM,J WP_6761_2021

acquired and process of acquisition under Act No.30 of 2013 is

commenced though notification was issued on 18.03.2018.

Therefore, issue of Gazette Notification for acquisition of land and

failure to commence the process of acquisition in terms of the

provisions of Act. 30 of 2013 for unreasonable period is contrary to

the law laid down by the Hon'ble Supreme Court in Raju S.

Jethmalani v. State of Maharashtra (referred supra).

As discussed above, as laid down by the Hon'ble Supreme

Court and High Court of Judicature at Hyderabad for the State of

Telangana and Andhra Pradesh, the inaction of the second

respondent in completion of the process of building application for

sanction of plan and inaction in the process of commencement of

acquisition in terms of Act.No.30 of 2013 is illegal and arbitrary and

such act amounts to depriving these petitioners from enjoying their

property and it is in violation of Article 300-A of the Constitution of

India. Hence, I find that it is a fit case to issue a direction as claimed

by these petitioners. Accordingly, the point is answered.

In the result, writ petition is allowed, declaring the action of

the second respondent in not completing the process for grant of

permission for building application and failure to initiate the

proceedings for acquisition or commence the process of acquisition of

land notified in Gazette Extraordinary No.850 dated 31.10.2018

issued for the proposed Inner Ring Road (IRR), as illegal, arbitrary

and violative of Article 300-A of the Constitution of India.

Consequently, the second respondent is directed to complete the

process of building application submitted by the third petitioner MSM,J WP_6761_2021

within sixty days from the date of receipt of copy of this order, in

case, the building application is returned and represented by the

petitioners or in the alternative, the second respondent is directed to

commence the process of acquisition of land in terms of Act 30 of

2013 within sixty days from the date of receipt of copy of the order or

de-notify the land from proposed acquisition vide Gazette Notification

dated 31.10.2018.

Consequently, miscellaneous petitions pending, if any, shall

also stand dismissed.

_________________________________________ JUSTICE M. SATYANARAYANA MURTHY Date: 24.07.2021 SP