Kumpatla Appa Rao vs Government Of Andhra Pradesh
2021 Latest Caselaw 3914 AP

    THE HON'BLE SRI JUSTICE M.SATYANARAYANA MURTHY

                        WRIT PETITION No.14705 of 2021
ORDER:

This writ petition is filed under Article 226 of the Constitution

of India initially against respondent Nos.1 to 4 seeking the following

relief:

"to issue a Writ of Mandamus or any other appropriate Writ, order or direction declaring the action of the Respondents in seeking to utilise the land of an extent of Ac.0.72 cts in S.Nos.385 and 380 with all subdivisions therein situate in Tatiparthi Village, Gollaprolu Mandal, East Godavari District, acquired and earmarked for community purposes in the year 1985, for purpose of house sites under Navaratnalu- Pedalandariki Illu Scheme as illegal or arbitrary."

Later, respondent Nos.5 to 9 are impleaded as per the orders

in I.A.No.02 of 2021 dated 18.08.2021.

The case of the petitioner, in brief, is that respondent No.1

acquired an extent of Ac.5.11 cents in S.No.385/1, 2, 3, 3A, 3B, 4, 5,

6, 380/2, 3 in Tatiparthi Village, Gollaprolu Mandal, East Godavari

District for the purpose of distribution of house sites to the

houseless poor persons. Respondents prepared layout and got

approved the layout, house sites were distributed to the landless

poor in the year 1985 by respondent No.4 each of an extent of

Ac.0.03 cents in the above land. All the petitioners and other patta

holders constructed their houses and living therein. Thus, the

petitioners are in possession and enjoyment of the assigned land

along with 80 other persons, who constructed their houses and living

therein. At the time of approval of layout, Ac.0.72 cents was left in

the layout for community purpose i.e. for Public Park, playground

and community hall etc. The petitioners have been submitting

representations from time to time for utilisation of the same for

community purpose without any avail. While so, the officials from MSM,J wp_14705_2021

the revenue department visited the village especially layout and

promised to take steps for sanction of funds for construction of

public park, community hall etc. So far, no action is taken in the

said direction though decades are rolling by.

The State Government in the recent past took a policy decision

to distribute house site under the flagship programme "Navaratnalu-

Pedalandariki Illu". In pursuance of the same, some officials from the

office of respondent Nos.2 to 4 came to the land i.e. Ac.0.72 cents,

which is earmarked for community purpose, along with police

people, inspected the same for distribution of the said land to the

houseless poor in the village. There are no houseless poor people in

the village, but house sites are sought to be given once again to the

persons of choice of person in political power. The petitioners

brought to the notice of the officials that the land was earmarked for

communal purpose. Later, the petitioners submitted a detailed

representation dated 17.06.2021 to respondent No.2 brining to his

notice that the land meant for communal purpose. No reply was

given and no action was taken on the representation of the

petitioners.

It is further submitted that the son of petitioner No.1 applied

for the necessary information under the Right to Information Act, but

the information was not furnished. On that, son of petitioner No.1

filed an appeal before respondent No.3. Finally, respondent No.3 sent

an endorsement of respondent No.4 in Rc.A/112/2021 dated

05.07.2021. The said endorsement shows that an extent of Ac.0.72

cents was earmarked as community site in the year 1985.

Respondent No.4 could not give details as to how many pattas were

issued in the site. It is informed that the possession of the site was MSM,J wp_14705_2021

taken as per G.O.Ms.No.510 Revenue (Lands-I) Department dated

30.12.2019 issued by respondent No.1, house site pattas were

granted, and the said site is in Sy.No.380 and 385 and its sub-

divisions. It is also informed that an extent of Ac.5.11 cents in the

above survey numbers was purchased from the ryots for distribution

as house sites. A copy of the report of the village Surveyor, Tatiparthi

village Secretariat I and II, Gollaprolu Mandal submitted to

respondent No.4 was also sent, in which it was stated that after

acquisition of the land, which disclosed that an Award No.11/80

dated 10.03.1980 was passed and that changes were made in FMB;

later S.Nos.385/1,2,3A, 4, 5, 6 were changed as S.No.380/1 and

that the vacant land in question is in S.No.380/1.

It is also contended that the Apex Court consistently held that

the Government cannot re-allot the land for any purpose other than

the one for which it was originally earmarked. The High Court of

Court of Andhra Pradesh reiterated the same principle in

W.P.No.26276 of 1996.

Respondent No.1 also issued G.O.Ms.No.72 Municipal

Administration and Urban Development (G1) Department dated

20.02.2002 directing all Nagar Panchayats/Municipalities/Municipal

Corporations in the State shall not propose to utilise the reserved

open spaces of a layout for the purpose other than the intended

original use such as a park, play ground, community structure,

urban forestry and similar eco-conservation programme.

It is further contended that the impugned action of the

respondents in taking possession of Ac.0.72 cents, which was

originally earmarked for community purpose, allotting the same as

house site under the present populist Government scheme MSM,J wp_14705_2021

"Navaratnalu-Pedalandariki Illu" is illegal, arbitrary and contrary to

the law declared by the Apex Court in several judgments, so also

violative of G.O.Ms.No.72 Municipal Administration and Urban

Development (G1) Department dated 20.02.2002, requested to issue

a direction as claimed in the writ petition.

Respondent Nos.1 to 4 did not file any counter.

Respondent Nos.5 to 9 being the beneficiaries filed counter

along with vacate stay petition denying material allegations inter alia

contending that respondents Nos.5 to 9 are land less poor persons,

therefore, respondent Nos.5 to 9 and some of the villagers made

application for grant of houses under "Navaratnalu- Pedalakandariki

Illu" house scheme. Later, considering their eligibility, living

conditions and also taking into consideration the availability of

Government land, the official respondents called for objections, but

no objections were filed by anybody at that point of time, as such the

eligibility list was published. Respondent No.4 granted house site

pattas to respondents Nos.5 to 9 and some of the Villagers Vide Ref.

No. B/42/2019 dated 21.12.2020. Thereafter, respondents Nos.5 to

9 and others have started construction by availing housing

scheme/loan provided by the Government to the landless poor

persons in the village and invested their earning and savings for

construction of the same, raised foundations, pillars and invested

substantial amount for construction and the petitioners are aware of

the constructions raised by them. The petitioners suppressed the

fact as to the stage of construction and averred that respondents 2 to

4 are trying to make construction as on 19.07.2021, whereas

respondent Nos.5 to 9 have started construction in the said land in

the month of June 2021. At this stage, the petitioners approached MSM,J wp_14705_2021

this Court and got the interim orders "directing the respondents not

create any third party interest in the subject property" and

respondent Nos.5 to 9 denied the allegation that there are no

houseless people in the village.

It is further contended that G.O.Ms No. 72 dated 20.02.2002 is

related to the all Nagar Panchayats/Municipalites/ Municipal

Corporations in the state shall not propose to utilize the reserved

open spaces of a layout for the purpose other than the intended

original use. The site allotted area in the present writ petition is

within Rural limits of Tatiparthi Villlage, Gollaprolu Mandal.

G.O.Ms.No.72 dated 20.02.2002 does not apply to the present case,

as the area falls within the limits of Rural area. In view of the

allotment of the land in the month of December, 2020 the claim of

the petitioners is belated and there is exorbitant delay in filing the

present Writ Petition, thereby the writ petition is not maintainable,

requested to dismiss the writ petition.

Sri V.V.L.N.Sarma, learned counsel for the petitioners,

contended that Ac.0.72 cents in Sy.No.385 and 380 Tatiparthi

Village, Gollaprolu Mandal, East Godavari District is earmarked for

public purpose/community purpose and it cannot be utilised for any

other purpose since it is mandatory to provide necessary civic

amenities such as temple, park etc. for the use of residents of the

layout. But, now the respondents are proposing to convert the same

into house site contrary to the purpose for which it is meant and in

contravention of the law laid down by the Apex Court in various

judgments so also G.O.Ms No.72 dated 20.02.2002, requested to

issue a direction as stated above.

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Learned Assistant Government Pleader for Revenue contended

that the State issued G.O.Ms.No.510 dated 30.12.2019 authorising

all the District Collectors to resume the unutilised Government land

on the ground of violation of conditions or non-utilisation of the

allotted land which was earlier alienated in favour of private

individuals/private organizations/Government organisations/

Government departments/Public Sector Undertakings/state

Government Corporations/Urban Development Authorities and

Urban local bodies on the grounds of violation of conditions or non-

utilisation of the alienated lands in terms of G.O.MS.No.57,

Revenue (Assn.I) Department, Dated 16.02.2015 and they are

further authorised to utilise the land acquired by various

Government departments/organisations for any public purpose but

not put to use for the same purpose. It is further mentioned in the

said G.O.Ms.No.510 dated 30.12.2019 that "these lands shall be

utilised for providing House sites to eligible beneficiaries under

the flagship programme "Navaratnalu-Pedalandariki Illu". Taking

advantage of G.O.Ms.No.510 dated 30.12.2019, learned Assistant

Government Pleader for Revenue contended that the said property of

Ac.0.72 cents, which was earmarked for public purpose is not put to

use, therefore, State can take possession of the same, though meant

for communal purpose, for distribution of house site pattas under

the flagship programme "Navaratnalu-Pedalandariki Illu". Therefore,

the act of the respondents is justifiable and such act of the State

cannot be declared as illegal and arbitrary, and not violative of

G.O.Ms.No.72 dated 20.02.2002 as the same was superseded by

G.O.Ms.No.510 dated 30.12.2019, requested to dismiss the writ

petition.

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Sri G.Eswaraiah, learned counsel for respondent Nos.5 to 9

reiterated the contentions urged in the counter while submitting that

the possession of the land was taken over by the Government and

distributed pattas in their favour, started construction therein and

produced photos to establish the ongoing construction in the land,

and in case the action of the respondents is set aside, respondent

Nos.5 to 9 will be put to serious loss, requested to dismiss the writ

petition.

Considering rival contentions, perusing the material available

on record, the points need to be answered by this Court are as

follows:

(1) Whether extent of Ac.0.72 cents in Sy.Nos.385 and 380 situated in Tatiparthi Village, Gollaprolu Mandal, East Godavari District is meant for communal purpose like construction of school, temple or public park etc.? (2) Whether the said land meant for communal purpose, which is not put to use, can be assigned to the houseless poor under the scheme "Navaratnalu - Pedalandariki Illu"? If not, the impugned action of respondents be declared as illegal, arbitrary and violative of G.O.Ms.No.72 dated 20.02.2002?

P O I N T No.1:

The respondents did not dispute the nature of the land and

the purpose for which it was earmarked. During hearing, learned

Assistant Government Pleader for Revenue, though counter is not

filed, specifically contended that though the land was earmarked for

public purpose, if it was not put to use, the possession of the

property can be taken by the State based on G.O.Ms.No.510 dated

30.12.2019 for utilising the same under the scheme "Navaratnalu -

Pedalandariki Illu". At this stage, it is relevant to extract the

paragraph No.5 of G.O.Ms.No.510 dated 30.12.2l019, which is as MSM,J wp_14705_2021

follows:

"5. Accordingly, Government hereby authorize the District Collectors of the respective districts to resume the unutilised Government lands on the grounds of violation of conditions or non- utilisation of the allotted land which was earlier alienated in favour of private individuals/ private organizations/Government organisations/ Government departments / Public Sector Undertakings/state Government Corporations/Urban Development Authorities & Urban Local Bodies on the grounds of violation of conditions or non-utilisation of the alienated lands in terms of G.O.MS.No.57, Revenue (Assn.I) Department, Dated 16-02-2015 and they are further authorised to utilise the lands acquired by various Government departments/organisations for any public purpose but not put into use for the same purpose. These lands shall be utilised for providing House sites to eligible beneficiaries under the flagship programme "NAVARATNALU-PEDALANDARIKI ILLU"."

According to the information furnished under Right to

Information Act to the son of petitioner No.1, an extent of Ac.0.72

cents in Sy.No.380 and 385 is earmarked as community site, but

could not furnish the details of beneficiaries, to whom the pattas

were granted.

The information obtained under Right to Information Act is

substantiating the contention of the petitioners that the land to an

extent of Ac.0.72 cents in Sy.No.380 and 385 is earmarked for

communal purpose at the time of approving layout. This fact is not

disputed by respondent Nos.5 to 9 in their counter or even the

learned Assistant Government Pleader for Revenue did not deny the

same. Thus, the petitioners established that Ac.0.72 cents in

Sy.No.380 and 385 is earmarked for communal purpose.

Accordingly, the point is answered in favour of the petitioners.

P O I N T No.2:

As held in point No.1, extent of Ac.0.72 cents in Sy.No.380

and 385 is earmarked for communal purpose. What is „communal

purpose‟ is not stated anywhere. At best, it can be said to be „for use MSM,J wp_14705_2021

of community at large‟, but not for individual purpose. When layout

is approved, certain extent of land is to be earmarked for „communal

purpose‟ for using the same by public at large/community at large

for their better standard of living and such land cannot be utilised

for any other purpose in view of G.O.Ms.No.72 dated 20.02.2002,

wherein it is stated as follows:

"In this regard, the High Court of Andhra Pradesh in its order in W.P.No.26276/96 based on Supreme Court Judgment in SC 1902 and SC 577 had concluded that the Government have no jurisdiction to convert the site reserved for part or play ground for some other purpose. The Court has also opined that any buildings or construction in such places necessarily affect the health, sanitation and the environment adversely affecting the residents of the locality."

In view of the said Government Order (referred above), the

land earmarked for public purpose while approving the layout,

cannot be utilised for any other purpose. In the present case, the

Revenue department based on G.O.Ms.No.510 dated 30.12.2019

wanted to take away the land earmarked for public

purpose/communal purpose when it is not put to use. When a

layout is approved by the Director of Town Planning, earmarked

land for public purpose, it will vest on the Municipality or Panchayat

and deemed to be in the custody of the concerned local government.

Unless, such land is divested on the Government by necessary

Government Order, the Revenue department has no control over the

same. Even assuming for a moment, that the land is divested on the

Government by any Government Order, still it cannot be utilised for

any other purpose when it is earmarked for public/communal

purpose.

Conversion of land reserved for public purpose into house sites

by the State depriving the residents of the layout to enjoy the MSM,J wp_14705_2021

amenities like school, temple, community hall and park is a grave

illegality and contrary to the G.O.Ms.No.72 dated 20.02.2002.

Rule 13 of the Andhra Pradesh Land Development (Layout and

Sub-division) Rules, 2017 is relevant for the purpose of deciding the

present issue, which reads as under:

"13. Reservation and Allotment of Land:

(1) The reservation and allotment of land for various purposes in the land / layout development shall be as follows:

(a) In layouts of 5 Ha. and below: 2% of the layout area for Amenities and 0.5% of the layout area for Utilities.

(b) In layouts of above 5 hc : 3% of the layout area for Amenities and 1% of the layout area for Utilities.

(c) 10% of the layout area for Public Open Space.

(d) 30% of the layout area for Roads. In case of roads area arrived below 30% the public open space shall be increased proportionately so that the area under roads and open space put together shall be minimum of 40% of layout area.

(2) The area reserved for Public Open Space shall be handed over to the Local Authority free of cost through a registered gift deed. This area shall be used only for Parks, Playgrounds, Gardens, Nursery, Recreational Open space etc. and shall not be utilized for any purpose other than the purpose for which it is transferred. The Applicant shall construct a compound wall as per the design prescribed for this site and handover to the Local Authority.

(3) The areas reserved for utilities shall be handed over to the Local Authority free of cost through a registered gift deed. This area shall be utilized only for community facilities such as Electrical Substation, Government school, Government Dispensary, Ward Office, Public Utility Office, Public Library, Water Reservoir, Rain water harvesting structures, Police Station/outpost, Public Parking, Fire Station, Bus Station, Septic Tank, Solid Waste Collection point etc. (4) The area reserved for Amenities shall be used only for the purposes earmarked in the Final Layout Plan [FLP] by the Competent Authority for educational, commercial facilities etc. The Owner/Developer may also sell or lease this area but only for the purposes earmarked in the Final Layout Plan [FLP].

(5) The stamp duty is exempted for handing over the areas reserved for public purpose and utilities to the concerned local authorities through Registered Gift / settlement deed.

(6) Every open space shall have independent means of access. (7) In case, the area for which the Land/Layout Development sought for falls in sanctioned Master Plan or Zonal Development Plan or Draft Plan, if a MSM,J wp_14705_2021

portion of this land falls in the area earmarked/reserved in such plans for a common public purpose in the interest of general development of the 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 Local Authority. (8) In other cases i.e., if the area so earmarked in the Land/Layout Development under reference for roads and public open space are more than such percentage as prescribed in sub-rule (1) he shall Page 36 also transfer the entire area so proposed to be reserved in the layout and he is entitled to receive Transferable Development Rights (TDR) from the Local Authority for the part of his site which is in excess of the extent of lands which he was to provide as per sub-rule (1).

(9) The areas allotted for Affordable Housing if any, shall be utilized only for the specific purpose and the applicant may sell or dispose of these plots only for the said purpose and no amalgamation or alteration of these plots shall be considered.

(10) Government/Development Authority / Local Authority / Developer / Owner/Applicant have no jurisdiction to convert the site reserved for public purpose such as park or playground, utilities, amenities affordable housing and for some other purpose.

(11) In the case of Commercial / Industrial Land Development having an area of above 3 Hectares, an extent of 5% of the total area shall be reserved for general parking space; and if such parking area exceeds 2000sq.m part of it could be utilized for the construction of buildings for banks, canteens, welfare centres and such other common purposes considered necessary for the industrial user, as approved by the Authority."

In compliance of Rule 13 of the Andhra Pradesh Land

Development (Layout and Sub-division) Rules, 2017, land in an

extent of Ac.0.72 cents in Sy.No.380 and 385 is reserved for public

purpose i.e. construction of school, temple, community hall and

development of park. The reservation of such land under Rule 13 of

the said Rules is mandatory and the same cannot be utilised for any

other purpose.

Chapter II of the Andhra Pradesh Panchayat Raj Act, 1994 (for

short "the Act") deals with powers, functions and property of Gram

Panchayats. Section 46 of the Act reads thus:

"46. Power of Gram Panchayat to provide for certain other matters:- Subject to the provisions of this Act and the rules made thereunder, a Gram Panchayat may also make such provision as it thinks fit for carrying out the requirements of the village in respect of the following matters, namely:-

MSM,J wp_14705_2021

(i) the construction and maintenance of dharmashalas, sarais and rest houses for travellers;

(ii) the planting and preservation of groves and trees on the sides of roads and other public places;

(iii) the promotion and development of pre-primary education, elementary education, social and health education, cottage industries and trade;

(iv) the establishment and maintenance of dispensaries and the payment of subsidies to rural medical practitioners;

(v) the establishment and maintenance of wireless receiving sets, play grounds, akhadas, clubs and other centres for recreation and physical culture;

(vi)      the laying and maintenance of parks;
(vii)     the establishment and maintenance of libraries and reading rooms;
(viii)    the provision of relief to the crippled, the destitute and the sick;
(ix)      the establishment and maintenance of nurseries and stores of

improved seeds and agricultural implements of the production and distribution of improved seeds, pesticides and insecticides and the holding of agricultural shows including cattle shows;

(x) the propagation of improved methods of cultivation in the village including laying out of demonstration plots with a view to increasing production;

(xi) the encouragement of co-operative management of lands in the village and the organisation of joint co-operative farming; and the promotion of co-operatives for the manufacture of bricks, tiles, hinges, doors, windows, rafters or other building materials as provided in the village housing project schemes sponsored by the Central Government;

(xii) the establishment and maintenance of ware-houses and granaries;

(xiii) the establishment and maintenance of cattle sheds;

(xiv)     the extension of village sites;
(xv)      the improvement of cattle including purchase and maintenance of

stud bulls and the provision of veterinary relief; (xvi) the control of fairs, jataras and festivals; (xvii) the organisation of voluntary labour for community development works in the village;

(xviii) the establishment and maintenance of maternity and child welfare centres;

(xix)     the organisation of watch and ward;
(xx)      the provision of relief against famine or other calamities;
(xxi)     the destruction of stray and owner-less dogs;
(xxii)    the preparation of statistics of unemployment;

(xxiii) the opening and maintenance of public markets; (xxiv) the opening and maintenance of public slaughter houses;

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(xxv) the implementation of land reform measures in the village including consolidation of holdings and soil conservations; (xxvi) the setting up of organisation to promote good will and social harmony between different communities, the removal or untouchability, the provision of house sites for harijans, the eradication of corruption, the prohibition of or temperance in the consumption of intoxicating drinks or drugs which are injurious to health and the discouragement of gambling and litigation; (xxvii) other measures of public utility calculated to promote the safety, health, convenience, comfort or moral, social and material well-being of the residents of the village."

In view of Section 46 of the Act, it is the duty of the Gram

Panchayat to provide certain amenities to the public and maintain

them, such as construction of schools (clause iii), laying and

maintenance of parks (clause vi) and other measures of public utility

calculated to promote the safety, health, convenience, comfort or

moral etc. (clause xxvii).

Section 58 of the Panchayat Raj Act is a special provision to

divest the tanks, roads, etc, specified in Sections 53, 54, 55 and 57,

including the porambokes namely, grazing grounds, thrashing floors,

burning and burial grounds, cattle stands, cart tracks and topes,

which are at the disposal of the Government and are not required by

them for any specific purpose shall vest in the Gram Panchayat

subject to such restrictions and control as may be prescribed. Sub-

section (2) of Section 58 says that, the Government may, at any time

by notification in the Andhra Pradesh Gazette, direct that any

porambokes referred to in sub-section (1) shall cease to vest in the

Gram Panchayat if it is required by them for any specific purpose

and thereupon such porambokes shall vest in the Government.

Therefore, a gazette notification is necessary to divest the property on

the government that vested on the gram panchayat. In the absence

of any notification issued by the Government divesting Gram MSM,J wp_14705_2021

Panchayats of any poramboke lands, there cannot be any use of

panchayat land for any other purpose and the same cannot be

assigned to the landless poor for house site or otherwise. Thus,

unless there is a notification by the Government divesting gram

panchayat and vesting on Government any property referred above,

there cannot be any use of panchayat land for any other purpose.

(Vide: "Rythu Seva Sangam, Yenamadurru v. Bhimavaram

Municipality1" and "Banne Gandhi and others v. District

Collector2").

When once the land is reserved for public purpose, it cannot

be converted into house sites and assign the same to the public

under any scheme in view of the law laid down by the Apex Court in

"Jagpal Singh and others vs. State of Punjab and others3",

wherein the Apex Court held as follows:

"Para 3: The protection of common rights of the villagers were so zealously protected that some legislation expressly mentioned that even the vesting of the property with the State did not mean that the common rights of villagers were lost by such vesting. Thus, in Chigurupati Venkata Subbayya v. Paleduga Anjayya (1972) 1 SCC 521) SCC Page 529 the Court observed in Para 23 as follows: "23. It is true that the suit lands in view of Section 3 of the Estates Abolition Act did vest in the Government. That by itself does not mean that the rights of the community over it were taken away. Our attention has not been invited to any provision of law under which the rights of community over those lands can be said to have been taken away. The rights of the community over the suit lands were not created by the principal or any other landholder. Hence those rights cannot be said to have been abrogated by Section 3(c) of the Estates Abolition Act."

In view of the principle laid down in the above judgment,

communal land, though available, cannot be alienated to any third

party defeating the common rights of the villagers.

2012 (5) ALT 631

2007 (2) ALT 550

(2011) 11 Supreme Court Cases 396 .

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At this stage, it is condign to advert to Rule 3 of the A.P./T.S.

Gram Panchayat Land Development (Layout and Building) Rules,

2002 deals with application for layout permission and Rule 4

specifies minimum requirement for approval of layout, it runs as

follows:

"4. Minimum requirement for approval of Layout. - (1) The Layout proposal shall conform to the requirements:

(a) shall have approach through an existing road, the width of such shall not be less than 10 meters (in case of land-locked plots, the owner has to ensure the approach road through neighbouring lands accordingly;

(b) minimum width of proposed roads in the layout shall be 10 meters for residential and 12 meters for all nonresidential layouts. Notwithstanding the above minimum width, the Executive Authority may insist upon larger road widths depending upon local conditions or importance of any particular road etc., as appended in Annexure-C. The width of the roads in the layouts General Town Planning Scheme or the Indicative Land Use Plan or Master Plan, if any in force;

(c) minimum open space set apart in the proposed layout for playground /park /educational institution or for any other public purpose shall be at the rate of 10% of the total site area;

(d) the minimum plot size for nonresidential layouts shall be 300 Sq. Meters except in case of Commercial or Mercantile buildings for which the minimum plot size shall be 18 Square Meters.

(e) the layout proposals shall comply with the restrictions mentioned in Rule 5 of these rules.

(f) the applicant should provide a service road of minimum 10 meters width for the layout if the land is abutting to National Highway having less than 600 meters width."

As per clause (c) of Rule 4 minimum open space be set apart in

the proposed layout for playground/park/educational institution or

for any other public purpose at the rate of 10% of the total area of

site.

Rule 9 of the said rules deals with deviations during

construction/undertaking of layout works. As per Rule 9, if during

the execution of any layout, any deviation is made from the

sanctioned plan the owner shall obtain revised sanction as per the MSM,J wp_14705_2021

procedure and rules. In the present facts of the case, though the

plots reserved for public purpose, no such revised sanction was

obtained under the Rules strictly adhering to Rule 9 of the said

Rules.

The owner who has been given sanction shall be wholly and

solely responsible for the quality of workmanship of layout

development works, and for ensuring safety during the

construction/development works, etc. as per Rule 10 of the Rules.

Therefore, the land reserved for public purpose shall vest on

the Gram Panchayat in view of clause (7) Rule 11 of the A.P./T.S.

Gram Panchayat Land Development (Layout and Building) Rules,

2002. According to clause (7) Rule 11, all the roads and open spaces

such as parks and playgrounds earmarked in accordance with these

rules in a layout, which is approved by the Gram Panchayat shall

automatically stand transferred free of cost, and vest with the gram

panchayat free from all encumbrances. After such vesting, the gram

panchayat shall maintain all such open spaces for the purpose for

which they have been earmarked.

Thus, the open space is deemed to be vested on the Gram

Panchayat as per clause (7) of Rule 11 of the said Rules, and Gram

Panchayat is not competent to divest the land and vest on

Government for the reason that Section 58 of the Panchayat Raj Act

has no application. Therefore, the Gram Panchayat is the custodian

of the property having vested on it in view of clause (7) of Rule 11 of

the Rules.

The Division Bench of the High Court of Andhra Pradesh at

Hyderabad in "Sri Balaji Park Residents Welfare Association v.

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Vice-Chairman, Visakhapatnam Urban Development Authority4"

dealt with power of the authority to convert the open plots reserved

for public purpose/communal purpose for any other purpose with

reference to different enactment; ultimately concluded that the

plots/land reserved for public purpose like construction of school,

community hall, park etc. cannot be converted to any other purpose

and shall not allot the same to any other person.

An identical issue came up before the Apex Court in

"Machavarapu Srinivasa Rao v. The Vijayawada, Guntur,

Tenali, Mangalagiri Urban Development Authority5". In the said

judgment, the Apex Court is of the view that in the absence of

change of land use which could have been sanctioned only by the

State Government, Respondent No. 1 therein had no jurisdiction to

grant permission to Respondent No. 3 therein to construct temple at

the site. Respondent No. 1 was very much alive to this legal position

and this is the reason why its Vice Chairman had written letter dated

15.6.2010 to the Principal Secretary to the Government for change of

land use by stating that a mistake had been committed at the time of

preparation of Zonal Development Plan. But, the Apex Court did not

accept the contention and concluded that when the land is reserved

for recreational use and that too by ignoring that the same had not

been allotted to Respondent No. 3 by any public authority, for

construction of temple other than the purpose for which it was

reserved.

In the said judgment, the Apex Court considered the earlier

judgment in "Bangalore Medical Trust v. B.S.Muddappa6",

2001(6)ALD325

(2011)12SCC154

(1991) 4 SCC 54 MSM,J wp_14705_2021

wherein the Court highlighted the purpose of Public Park and held

that Public park as a place reserved for beauty and recreation was

developed in 19th and 20th century and is associated with growth of

the concept of equality and recognition of importance of common

man. Earlier it was a prerogative of the aristocracy and the affluent

either as a result of royal grant or as a place reserved for private

pleasure. Free and healthy air in beautiful surroundings was

privilege of few. But now it is a, `gift from people to themselves'. Its

importance has multiplied with emphasis on environment and

pollution. In modern planning and development it occupies an

important place in social ecology. A private nursing home on the

other hand is essentially a commercial venture, a profit oriented

industry. Service may be its motto but earning is the objective. Its

utility may not be undermined but a park is a necessity not a mere

amenity. A private nursing home cannot be a substitute for a public

park. No. town planner would prepare a blueprint without reserving

space for it. Emphasis on open air and greenery has multiplied and

the city or town planning or development Acts of different States

require even private house owners to leave open space in front and

back for lawn and fresh air. In 1984 the B.D. Act itself provided for

reservation of not less than 15 per cent of the total area of the layout

in a development scheme for public parks and playgrounds the sale

and disposition of which is prohibited under Section 38A of the Act.

Absence of open space and public park, in present day when

urbanisation is on increase, rural exodus is on large scale and

congested areas are coming up rapidly, may give rise to health

hazard. May be that it may be taken care of by a nursing home. But

it is axiomatic that prevention is better than cure. What is lost by MSM,J wp_14705_2021

removal of a park cannot be gained by establishment of a nursing

home. To say, therefore, that by conversion of a site reserved for low

lying park into a private nursing home social welfare was being

promoted was being oblivious of true character of the two and their

utility.

In "M.C.Mehta v. Union of India (UOI)7" the Apex Court while

dealing with the amendment of master plan held as follows:

"While it is true that this Court has directed user of land left with the owner to be developed in accordance with the user permitted under the Master Plan but the whole aim, object and spirit of the order was to meet the community need and it is in this context also that Mr. Gopal Subramaniam drew our attention to the Appendix to the Zonal Development Plan pertaining to area "G". We are however unable to accede to such a submission since time has not come as yet in any event to assess the situation in its entirety. The Zonal Development Plans produced before the Court has not been finalised as yet since it is presently in the draft stage and as such no reliance can be placed by this Court on the data and the materials available thereon. A proposal cannot be said to be a final declaration of the community need. We are thus unable to record our concurrence therewith for the reasons noticed above."

In view of the law laid down by the Apex Court in "M.C.Mehta

v. Union of India (UOI)" (referred supra), it is the duty of the owner

of the layout to maintain the land left for community needs.

Reserving any site for any street, open space, park, school etc.

in a layout plan is normally a public purpose as it is inherent in

such reservation that it shall be used by the public in general. The

effect of such reservation is that the owner ceases to be a legal owner

of the land in dispute and he holds the land for the benefit of the

society or the public in general. It may result in creating an

obligation in nature of trust and may preclude the owner from

transferring or selling his interest in it. It may be true that the

interest which is left in the owner is a residuary interest which may

(2001) 4 SCC 577 MSM,J wp_14705_2021

be nothing more than a right to hold this land in trust for the specific

purpose specified by the coloniser in the sanctioned layout plan. But

the question is, does it entitle the respondents herein to claim that

the land so specified should be transferred to third parties by

assignment at free of cost. That is not made out from any provision

in the Act or on any principle of law. The Gram Panchayat by virtue

of the land specified as open space may get a right as a custodian of

public interest to manage it in the interest of the society in general.

But the right to manage as a local body is not the same thing as to

claim transfer of the property to itself. The effect of transfer of the

property is that the transferor ceases to be owner of it and the

ownership stands transferred to the person in whose favour it is

transferred.

The Apex Court makes it clear that reserving any site for any

street, open space, park, school etc. in a layout plan is normally a

public purpose as it is inherent in such reservation that it shall be

used by the public in general. The effect of such reservation is that

the owner ceases to be a legal owner of the land in question and he

holds the land for the benefit of the society or the public in general.

(Vide: "Pt.Chet Ram Vashist (dead) by L.Rs v. Municipal

Corporation of Delhi8")

In view of the judgment of the Apex Court, the State

Government cannot have any jurisdiction to alter the character of

the land reserved for public purpose.

In "Dr.G.N. Khajuria v. Delhi Development Authority9" the

Apex Court held as follows:

(1995) 1 SCC 47

(1995) 5 SCC 762 MSM,J wp_14705_2021

"We, therefore, hold that the land which was allotted to respondent No.2 was part of a park. We further hold that it was not open to the DDA to carve out any space meant for park for a nursery school. We are of the considered view that the allotment in favour of respondent No.2 was misuse of power, for reasons which need not be adverted. It is, therefore, a fit case, according to us, where the allotment in favour of respondent No.2 should be cancelled and we order accordingly. The fact that respondent No.2 has put up some structure stated to be permanent by his counsel is not relevant, as the same has been one on a plot of land allotted to it in contravention of law. As to the submission that dislocation from the present site would cause difficulty to the tiny tots, we would observe that the same has been advanced only to get sympathy from the Court inasmuch as children, for whom the nursery school is meant, would travel to any other nearby place where such a school would be set up either by respondent No.2 or by any other body."

The Apex Court highlighted the purpose of providing lung

space, its importance and use in "Municipal Corporation,

Ludhiana v. Balinder Bachan Singh (Dead) by Lrs10" and held

that for every locality green spaces and green belts have to be

provided to provide lung space to the residents of the locality. A

provision for Green Park was made by the Municipal Corporation

keeping in view the minimum requirement to provide open/green

space to the residents of the locality.

The Apex Court in its latter judgment in "Sri Devi Nagar

Residences Welfare Association v. Subbathal11" further clarified

as to how the open space serves necessity to preserve and protect the

same while observing that the open space in a residential area or in

busy townships is treated as lung space of the area. It provides fresh

air and refreshment to the persons in the neighbourhood. Its

presence ameliorates the hazards of pollution and it has to be

preserved and protected for the sustenance of the men around. It is

(2004) 5 SCC 182

2007 (3) LW 259 MSM,J wp_14705_2021

for the health and well- being of the inhabitants of the residential

area. The same cannot be bartered for any other purpose.

The Apex Court in "Pillayarpatti Karpaga Vinayagar Koil

Nagarathar Trust thru Ramanathan v. Karpaga Nagar Nala

Urimai Sangam Rep.by Secretary12" held as follows:

The layout to an extent of 76.12 acres of land was prepared and approved with 910 plots by the town panchayat as per the Town Panchayat Building Rules. Later, Tallakulam Panchayat was merged with Madurai City Municipal Corporation during the year 1974 and the laws applicable to Madurai City Municipal Corporation were made applicable to Tallakulam Panchayat. Hence the conversion application for revalidation of the original plan was submitted to the Corporation. In that plan, 40 plots were shown as reserved for school. Thereafter, in the year 1979-80, the local planning authority of Corporation prepared a detailed development plan including the lands covered in the said layout. In the said plan, the area relating to 40 plots was demarcated and shown as residential area. As there was difference in the classification in respect of 1975 plan and 1980 plan, the local planning authority cancelled the 1975 plan with a direction that the 1980 plan alone would be valid .

Following the principles laid down in the above judgments, the

Madras High Court in "K.Durairaj v. The Secretary (W.P.No.34395 of

2007)" reiterated the principle that the land reserved for public

purpose in the layout cannot be converted for any other purpose

since such earmarking is for the benefit of the public.

In "HGN Samity v. Chief Secretary13", a Division Bench of

the Calcutta High Court stated the law thus:

"How the State Government had allotted a portion of the park in deviation of its policy decision in the name of building of Community Hall is a matter of great surprise that there are several statutes governing the field is not in dispute. A lay-out plan has to be made under the provision of the West Bengal Town and Country (Planning and Development) Act, 1979. The Calcutta Metropolitan Development Authority has issued handbook laying down the procedure and guidelines for environmental clearance. Although the same is meant for certain purposes, viz., industrial projects, the same is a pointer to show that the State had been also eager to maintain the greenery and the ecological balance. Therefore, we fail to understand as to how the State could allot the lands in question within a park which is contrary to the

AIR 2010 SC 3266

2000 (1) CHN 28 MSM,J wp_14705_2021

representation made by it to the residents particularly in view of the fact that excess premiums had been charged for those who had opted for settlement of land near the park or green verges.

It is also surprising as to how the Bidhan Nagar Municipality also sanctioned the building plan within a park. The said action, in our opinion, was not commensurate with the professed policy decision of the State and the Municipality. The aspect of the matter has recently been considered in "M.I. Builders Pvt. Ltd. v. Radhey Shyam Sahu 14", wherein it has been held that the Municipality is a Public Trustee in respect of parks".

In view of the law declared in catena of perspective

pronouncements (referred above) the site reserved for public purpose

in the layout cannot be used for any other purpose and it is for the

benefit of public i.e. for construction of school, temple, community

hall and park etc.

The intention of the State is to convert the land, reserved for

public purpose, into house sites for allotment to the landless poor

persons, depriving the residents of the layout to enjoy the amenities

like school, temple, community hall and park for their use. If such

conversion is permitted, the residents of the layout will lose not only

their amenities and also right to enjoy clean and decent

surroundings, sufficient light, pure air and water, electricity,

sanitation and other civic amenities like roads etc., that too such

conversion is impermissible under law as discussed above including

the Andhra Pradesh Land Development (Layout and Sub-division)

Rules, 2017, the Andhra Pradesh Panchayat Raj Act, 1994 and the

Andhra Pradesh Town Planning Act, 1920. Therefore, the proposed

allotment of land reserved for public purpose is totally in violation of

law declared by the Apex Court, High Court of Andhra Pradesh and

the law declared by the Madras High Court in various judgments

(referred supra). Therefore, such conversion of land reserved for

public purpose into house sites by the State depriving the residents

[1999]3SCR1066 MSM,J wp_14705_2021

of layout to enjoy the benefit in reservation of such plots for public

use is a grave illegality and contrary to the provisions of enactments

referred above.

Yet, there is a bar on such conversion and assignment of land

under B.S.O 15(4) of the A.P. Revenue Board Standing Orders, which

deals with the lands that may be assigned and that may not be

assigned, the same is extracted hereunder for better appreciation of

the case:

"BSO 15(4) Lands that may be assigned and that may not be assigned: -

(i) All lands at the disposal of the Government except those hereinafter prohibited may be assigned. The assignment of lands shall generally be free of market value except in the case of project affected lands in which case market value shall be collected.

(ii) The assignment of the following classes of lands is prohibited:

(a) Poramboke tank beds, foreshore of tank bed cattle stands, grazing lands and reserved lands (reserved for depressed class members or for any public purpose, such as schools, playgrounds, hospitals, maternity centers, reading rooms and extension of house-sites, Panchayat purposes, town sites and lands in the proximity thereof)

(b) Land which has been occupied for 18 months and adjoins a reserve forest or an unreserved block of a square mile or more until the Collector has consulted the District Forest Officer and considered any objections, he may have to its assignment;

(c) Lands containing topes or valuable trees;

(d) Lands within cantonment limits;

(e) Lands reserved under Section 26 of the Forest Act;

(f) Lands within port limits;

(g) Lands near the sea coast within one furlong of high water mark of the sea;

                   (h) Water course porambokes,            namely,
                   margins of channels, streams etc.;
                                                                             MSM,J
                                                                     wp_14705_2021




                   (i) Lands in the vicinity of aerodromes or
                   landing grounds (i.e.) within a belt of 200
                   yards;

(j) Lands containing minerals, quarries, etc.

(k) Padugais i.e. land within the flood bank of rivers, lanka lands not held on ryotwari tenure, river accretions and reformed lands for which the owners have ceased to pay assessment;

(l) Lands where "pati matti" is available and;

(m) Any other lands which are required or likely to be required for any public or any special purposes necessary for the provision of amenities of the community or connected with the development of the village.

Provided, however, that tank bed lands, foreshore lands and lands under categories (g), (j), (k) and (m) above, if not immediately required or if their occupation be not objectionable at present, may be leased with a condition for resumption, when required for public purpose without payment of compensation for improvements, if any effected."

Clause (ii) of B.S.O. 15 (4) made it clear that assignment of

Poramboke, tank beds, foreshore of tank bed cattle stands, grazing

lands and reserved lands (reserved for depressed class members or

for any public purpose, such as schools, playgrounds, hospitals,

maternity centers, reading rooms and extension of house-sites,

Panchayat purposes, town sites and lands in the proximity thereof) is

prohibited. Thus, it is a clear that the land reserved for public

purpose i.e. for construction of school, community hall, part etc.,

cannot be assigned.

At the same time, as per B.S.O 15(4) (ii) (m), any other lands

which are required or likely to be required for any public or any

special purposes necessary for the provision of amenities of the

community or connected with the development of the village,

provided, however, that tank bed lands, foreshore lands and lands

under categories (g), (j), (k) and (m) above, if not immediately

required or if their occupation be not objectionable at present, may MSM,J wp_14705_2021

be leased with a condition for resumption, when required for public

purpose without payment of compensation for improvements, if any

effected. Thus, from B.S.O 15(4)(m), land which is required for the

provision of amenities to the community cannot be assigned.

There is a difference between „communal purpose‟ and „public

purpose‟. If the land is meant for „communal purpose‟, only

particular community or group of persons can enjoy the benefit of

such property. If it is meant for „public purpose‟, every member of

public can enjoy the benefit of such property i.e. temple, school,

community hall and park etc. Therefore, reservation of site is for

„public purpose‟ cannot be equated with „communal purpose‟.

Whether it is for „communal purpose‟ or „public purpose‟, the same

cannot be assigned in view of the interdict contained in B.S.O. 15 (4)

(ii) (a) and (m) A.P. Revenue Board Standing Orders.

This Court in "Perala Jyotsna v. The State of Andhra

Pradesh15" considered the similar issue in detail, and by following

the principle laid down by the Apex Court in the judgments (referred

supra) reiterated that the land reserved for „communal purpose‟ i.e.

construction of school, temple, community hall and park cannot be

utilised for any other purpose.

One of the contentions of learned Assistant Government

Pleader for Revenue is that when the land is acquired for specific

purpose, it can be utilised for any other purpose as held by the Apex

Court in "Gulam Mustafa v. State of Maharashtra16", but such

principle is not applicable to the facts of the present case for the

simple reason that, the vacant site of Ac.0.72 cents is earmarked for

„public purpose‟ in the layout, if it is not earmarked for „public

2020 (6) ALT 429

AIR 1977 SC 448 MSM,J wp_14705_2021

purpose‟, it can be utilised. Earmarking of site in the layout is only

statutory requirement. Hence, the contention of the learned

Assistant Government Pleader for Revenue is rejected.

In view of my foregoing discussion, proposed conversion of

land, which is earmarked for communal purpose, by granting house

site pattas is an illegality and contrary to the provisions of the Act

and the Rules framed thereunder, the Andhra Pradesh Town

Planning Act, 1920 and B.S.O. 15 (4) of the A.P. Revenue Board

Standing Orders. Therefore, the writ petition deserves to be allowed.

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

the respondents in seeking to utilise the land of an extent of Ac.0.72

cents in S.Nos.385 and 380 with all subdivisions therein situated in

Tatiparthi Village, Gollaprolu Mandal, East Godavari District, which

is earmarked for „community purpose‟ in the year 1985, for purpose

of house sites under Navaratnalu- Pedalandariki Illu Scheme as

illegal or arbitrary.

Consequently, miscellaneous applications pending if any, shall

also stand dismissed.

_________________________________________ JUSTICE M. SATYANARAYANA MURTHY 05.10.2021 Ksp