Juthuka Suryakumari vs State Of Andhra Pradesh
2021 Latest Caselaw 3845 AP

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               THE HON'BLE SRI JUSTICE D.RAMESH

                    WRIT PETITION No.1373 of 2020

ORDER:

This writ petition is filed under Articles 226 of Constitution

of India, seeking following relief:

" ...to issue any writ, order or direction more particularly one in the nature of writ of mandamus declaring the Endorsement in Roc.no.8129/2019-G1 dated -12-2019 issued by the 2nd respondent and the letter dated 12.9.2019 issued by the 3rd respondent as illegal, arbitrary...."

2. The petitioner purchased plots in an extent of 466.66 square

yards in Survey No.108 of Kakinada, East Godavari District through

a registered sale deed Doc.No.290 of 2019, dated 03.01.2019. The

vendor of the petitioner purchased plot Nos.31, 32 and 33 in B block

under registered sale deed Doc. No.3592 of 1985 dated 3.4.1985. In

the said survey number, the petitioner purchased plot No.32

admeasuring 388.88 sq. yards and part of plot No.33 (North part)

admeasuring 77.77 sq. yards, in total 466.66 sq. yards. Subsequent

to the purchase, the petitioner paid vacant land tax to the said land

and applied for building permission vide BA

No.TEMP/1060/0241/B/KKD/RAM/2019 for construction of

ground + four floors. Subsequently, the petitioner was informed that

his application has been deleted from the online status. Hence, he

approached the 2nd respondent and it was informed that his

application cannot be considered because of the reason that after

approval of original layout, the developer of the lay out has changed

location of plot No.32 in B block and that a revised layout plan

TP.No.22 of 1985 was approved to that effect.

3. Initially one Bolla Veerabhadra Rao developed a residential

layout in his land in Sy.No.108, 109/1 and 109/1 part of

Ramanayyapeta, Kakinada, East Godavari District and got approval

of the lay out through T.P.No.30 of 1982 dated 05.10.1982. The

approved lay out comprises A, B and C blocks and the open spaces

and roads in each block are clearly mentioned and earmarked in the

layout. The vendor of the petitioner has purchased the plot Nos.31,

32 and 33 in B block approval in T.P.No.30 of 1982. Now as per the

information furnished by the 2nd respondent, said lay out plan has

revised and the revised plan is approved through T.P.No.22 of 1985.

4. Knowing the said information, the petitioner has made a

representation dated 09.07.2019 and approached the 2nd respondent

requesting that revised plan No.22 of 1985 does not affect the plot

Nos.32 or 33 of the petitioner, as it is confined only to the extent of

change in Plot No.1. However, 2nd respondent has not considered the

representation. Questioning the inaction of the 2nd respondent, the

petitioner filed W.P.No.1720 of 2019 and said writ petition was

disposed of, giving liberty to the petitioner to make a fresh

representation citing the earlier application number and other facts

within two weeks from the date of the order. In such an event, the

2nd respondent shall consider the same and pass an appropriate

order in accordance with Rules, within six weeks from date of receipt

of such representation from the petitioner and communicate the

order to the petitioner.

5. Accordingly a fresh representation was made on 10.12.2019 to

the 2nd respondent and in the said representation, the petitioner has

highlighted the endorsement made by the approving authority, who

approved the revised layout as per the orders of the J.D.T.P. (R.E.) in

file No.10947/95/R1, the plot No.1 is sub-divided into two plots as

1A and 1B; also submitted that the revised plan is only with regard

to the modification of layout in respect of Plot No.1 alone.

6. Pursuant to the said representation, the 2nd respondent has

issued the present impugned endorsement made Endorsement in

Roc.no.8129/2019-G1 dated -12-2019, on 20.12.2019. In the said

endorsement, the 2nd respondent stated that the Director of Town

and Country planning vide proceedings dated 12.9.2019 informed

that three sites were approved under Lp.No.30/82 (A,B & C). In site

A & B there are plots with Plot No.32 and later on L.B. NO.22 of

1985, Site B was revised and the plot No.32 was assigned but

location was changed and that the place of earlier Plot.No.32 is

shown as open space. On the basis of clarification given by DTCP,

the 2nd respondent concluded that no building permission is granted

in respect of plot No.32 as per T.P.No.30 of 1982. Questioning

the said orders, present writ petition is filed.

7. Sri V.V. Sathish, learned counsel appearing on behalf of the

petitioner has mainly contended that the lay out plan was approved

by T.P.No.30 of 1982 on 05.10.1982. As per the said plan, the plot

No.31, 32 and 33 were sold by the developer on 03.04.1985. Once

the plan is approved and the plots are sold, the developer cannot

change the location or nature of plot in any manner. Further

submits that the authorities cannot revise the plan without hearing

the affected persons, i.e. vendor of the petitioner, who purchased the

plots from the developer. In fact, the revised plan was approved on

15.11.1985. But before the said revision taken place, vendor of the

petitioner has purchased the plots as per the T.P.No.30 of 1982 on

03.04.1985 itself. Hence, without giving an opportunity to the

purchaser, the authorities cannot change or revise the plan, which

was approved in 1982.

8. Learned counsel the petitioner further submitted that in fact,

the revised plan was submitted only seeking permission to the

developer to divided Plot No.1 of Bock B, into 1-A and 1-B. Thus, the

authorities have changed only plot No.1 into plot No.1A and 1 B in

the revised plan. Hence, even according to the revised plan, plot

No.32 and 33 remained as it is. Hence, the endorsement passed by

the 2nd respondent on 20.12.2019 is contrary to the T.P.No.30 of

1982.

9. It is also submitted by the learned counsel for the petitioner

that the 2nd respondent without considering the representation made

by the petitioner, only basing on the information furnished by the 3rd

respondent i.e. DTCP, present impugned order is passed, which is

factually incorrect. The 2nd respondent has failed to consider the

representation made by the petitioner that even in the revised plan,

only the plot No.1 was divided into 1A and 1B, except that there no

other changes. Without considering the same, on the basis of

information furnished by the 3rd respondent, without looking into the

record submitted by the petitioner along with the representation

dated 10.12.2019, present impugned order is passed. The petitioner

is a bonafide purchaser of plot no.32 and 33 part, invested huge

amounts and made application for approval of the building plan,

by paying tax to the 2nd respondent, and 2nd respondent has no other

option except to consider the application made by the petitioner as

per the building permission rules. Hence, requested to set aside the

impugned Endorsement, dated _12_2019 issued by the 2nd

respondent and also the letter dated 12.09.2019 issued by the 3rd

respondent, directing the respondents to consider the application

made by the petitioner, as per the lay out plan T.P. No.30 of 1982..

10. To support his contention, learned counsel for the petitioner

has filed the approval of lay out plans i.e. T.P.No.30 of 1982 and 22

of 1985. On perusal of the said plans, as per the earlier layout plan

T.P.No.30 of 1982, it is with regard to B block, consisting 30 feet

road western side, after that plot nos.32 -34 are mentioned and in

the revised plan, after 30 feet road, plot Nos.31 and 32 are

mentioned, further there is no plot No.33 and 33 is mentioned in

some other place.

11. After notice, the respondents have filed their counters. The

2nd respondent in his counter, denied the averments made in the

affidavit filed by the petitioner. The 2nd respondent specifically

denied that the 2nd respondent has not considered objectively the

order of the JDTP in (RE 10957/95/R1), wherein only plot No.1 is

divided into two plots, by way of revised lay out, is not correct. In

fact the plot No.1 owner has applied for sub division of plot No.1, as

two plots and not by the developer, according to the said file, the plot

No.1 is divided into two separate plots in T.P.No.22/1985 only, and

the T.P.No.30 of 1982 was revised basing on the application made by

the developer and permission was granted in T.P.No.22/1985.

Hence, the file pertaining to JDTP file No.10957/95/R1 is nothing to

do with the T.P.No.22/1985.

12. In the counter, the 2nd respondent filed the changes made to

the T.P.No.30 of 1982 in T.P.No.22 of 1985 with a tabular form, as

follows:-

Sl. Description As per As per (Site B) As per the As per the No. T.P.No.30/82 revised petitioners Petitioners which is T.P.No.22 of Document Link cancelled 1985 No.290/2019 Document (Site B) No.3592/1985 (Site B) 1. Extent Ac.4.85 Cts. Ac.470 Cts. - - (Site B) 2. Total Number 40 Plots 35 - - of Plots Resdiential+3 Commercial 3. Open Space Ac.0.48 Cts Ac.0.47 Cts - - (10% (10%) 4. Roads Area Ac.1.36 Cts. Ac.1.11 Cts - - (30%) (23.6%) 5. Petitioner Plot No.32 Reserved Open Plot Nos.32 Plot Nos.32, Schedule And 33 Part Space and 33 Part 33 and 34 Property

6. Extent (60' x 70') (64'x56') (60' x 70') (134'.6"+130 1/2 )x 70')

7. Petitioner 30'.00" 30'.00" 30'.00" 30'.00" and Schedule open park site Boundaries East West Plot No.30 Plot No.28 and Plot No.39 Plot No.39 Part and 31 29 Part South Plot No.33 Plot No.31 Plot No.33 State Bank of Part (House and India Vacant Place) Colony Boundary North 33' Wide 33' Wide Road 30' Wide 33' Wide Road Road Road

13. Further stated that as per the above details, the western

boundary in the petitioner's document for plot No.32 and 33 part, he

has shown with plot no.39, whereas in the cancelled lay out i.e.

T.P.No.30 of 1982 the western boundary for plot No.32 and 33 part is

Plot No.30 part and 31. Even according to the schedule, it clearly

shows that by knowingfully well, the petitioner has purchased the

said plots by showing wrong boundary of western side. The licensed

technical person Sri K.Babjee in his notarized affidavit dated

14.08.2021 requested to submit the building construction

permission to the 2nd respondent. Accordingly, while processing the

said building permission through on-line, APDPMS through his

assigned login, (temporary generated B.A.No.

TEMP/1060/0241/B/KKD/RAM/2019) it is observed that the earlier

the director of Town and Country Planning, Government of Andhra

Pradesh, Hyderabad approved the T.P.No.30/82 dated 05.10.1982.

14. Further it is submitted that soon after entering in to online

building permission APDPMS system for any building permission,

every licensed technical person, has assigned temporary B.A.No.

then only APDPMS software permits to upload the detailed drawings,

requisite documents and necessary fees in the said APDPMS system.

Accordingly, he generated a temporary B.A.No.TEMP

1060/0241/B/KKD/RAM/ 2019 and soon after noticing the said

proposal in the reserved open space of T.P.No.22 of 1985,

immediately stopped the further uploading of requisite drawings,

documents and necessary fees and the same was refused. Said

technical person has not escalated to the Kakinada Municipal

Corporation, since he himself refused to process the file the schedule

property is a reserved open space according to T.P.No.22 of 1985.

15. In view of the revised lay out plan i.e. existence of revised plan

i.e. T.P.22 of 85, the application of the petitioner cannot be

considered because he made application for building permission,

which is reserved for open space. Hence, the same was rejected

through impugned endorsement.

16. The 3rd respondent also filed his counter. On receipt of lay

out proposals from the 2nd respondent i.e., the then Commissioner of

Kakinada Municipality presently Kakinada Municipal Corporation

reference Lr.Roc.No.950/82--G1 has examined and approved a

technical pattern in Survey No.109/1 part for Site A for electricity

board for (work men) employees, in S.No.108 for site B and

Sy.No.109/1 for Site C of Ramanayyapeta village in Kakinada

Municipality vide permit T.P.no.30 of 1982 covering total extent of

Ac.10.89 (site A = Ac.4.24 + Site B = Ac.4.85 + Site C = Ac.1.90) with

a total number of plots 105. Leaving the open space total in extent

of Ac.1.08 cents. i.e. in Site A, Acres 0.42 cents, in Site B 0.48 cents

and in Site C, 0.18 cents. Accordingly, said plan was approved and

sent to Kakinada Municipality, presently Kakinada Municipal

Corporation, for taking further action, with an approved No.TP 30 of

1982.

17. Subsequently, he has received a revised proposal from the 2nd

respondent vide reference LR.No.G1/9507/82, dated 20.10.1983.

Accordingly a revised plan was approved and issued i.e.

T.P.No.22/1985 in Survey No.108 site B, of Ramanayyapeta village of

Kakinada town. As per the approved plan in the year 1982,

T.P.No.30 of 1982 one bit of open space in an extent of 0.48 cents

has shown in Site B and later the same was revised in T.P.No.22 of

1985, as to two bits open space in an extent of 0.47 cents.

18. He further stated that the lay out developer, 1. Sri Bolla

Veerabhadra Rao, S/o.Viswanadham garu, 2.Smt.Bikkina Leela

Rani, W/o.Bulliramayya, 3.Smt.Chindalada Sugunammani,

W/o.Ananta Padmanabham, 4.Smt.Chandalada Praseeda Devi,

W/o.Padmaraju Chowdary, 5.Smt.Vuppuluri Kalabharati, W/o.Raj

Kumar, 2 to 5 present by General Power of Attorney Holder Sri Bola

Veerabhadra Rao has also transferred the said open space in favour

of the Municipal Council, Kakinada through registered Gift Deed

dated 25.06.1987 vide Doc.No.4365/1987.

19. According to the said gift deed, schedule of open space is shown as follows:-

North :- 33'-0" wide road.

East :- 30'.0 wide road.

South:- Plot No.31.

West:- Plot No.29 Part and 28.

20. Further submitted that the contention of the petitioner is not

true. In fact, the Municipal Commissioner, Kakinada has sent

proposal to the RDDTP, Rajahmundry for Sub-Division of Plot.No.1

in T.PNo.22 of 1985 and the same was approved by sub-dividing

Plot.No.1 as Plot.No.1A to an extent of 167.32Sq. Mts and 1B to an

extent of 166.18 Sq. Mts, by RDDTP, Rajahmundry vide

Lr.Roc.No.1170/1975-R1, dt.31.07.1995 and copy of the was sent to

the 3rd Respondent. Accordingly, the same was incorporated in the

Layout Plan of T.P.no.22 of 1985. It is further submitted that there

is no change in the Plot No.1 i.e. extent as well as location in both

L.P.no.30/82 and L.P.No.22 of 1985, the fact is Plot.No.1 was sub-

divided as Plot.No.1A and 1B in the year 1995.

21. In fact, they further stated that RDDTP, Rajahmundry vide

Lr.Roc.No.1170/1995-R1, dated 31-07-1995 is only with regard to

the division of plots in L.P.No.22 /85. It is nothing to do with the

revision of T.P.No.30 of 1982. In fact as per T.P.No.30 of 1982, plot

Nos.32, 33 and 34 are ear marked in the lay out but the same was

changed in revised plan in T.P.No.22 of 1985, plot No.32 has been

shown as open space in the revised approved plan in the year 1985.

Accordingly, the 3rd respondent issued a clarification vide Lr.Roc.

No.4729/2019/R1, dated 12.09.2019 to the 2nd respondent.

22. Further it is also submitted that the application filed for

revision of the lay out by the developer vide LR.No.G1/9507/82

dated 1.10.1983 according to the rules, the developer has also

enclosed the latest encumbrance certificate as on that date.

Accordingly, it did not reflect any sale transactions as stated by the

petitioner in his affidavit. Even according to the provisions of the

A.P. Municipalities Act, 1965 once any application is made, if the

authorities have not passed any orders, it is deemed provision that

after expiry of 150 days, from the date of receipt of the application, it

is deemed to be approved. It is needles to mention that the

application for revision of layout was considered basing on the

information furnished by the applicant as on the date. It is

obligatory on the part of the applicant/developer not to sell the land,

when the application is pending before the authorities. Hence, the

applicant, who made an application for revision of lay out

knowingfully well, that the said application is pending, executed sale

deeds, fraudulently in favour of the 3rd parties. It clearly shows that

the intentionally the developer executed the sale deed to the third

parties. Hence, as per the present revised T.P.No.22 of 1985 the plot

of the petitioner is ear marked for open space, hence, accordingly the

3rd respondent has submitted his clarification through letter No.

Lr.Roc. No.4729/2019/R1, dated 12.09.2019 to the 2nd respondent,

confirming the T.P.No.22 of 1985, as approved by the 3rd respondent

in the year 1985.

23. On this factual back ground, learned counsel for the

petitioner has contended that the petitioner is a bonafide purchaser

and the vendor of the petitioner has purchased the plot No.31, 32,

and 33 and subsequently, he purchased plot No.32 and part of 33 as

per the lay out approved by the 3rd respondent in T.P.No.30 of 1982.

Even according to the orders of the JDTP in RE 10957/95/R1 clearly

shows that it is only division, of plot No.1 and there is no mention

with regard to the plots Nos.31, 32 and 33. Hence, the 2nd

respondent has to consider the application made by the petitioner as

per T.P.No.80 of 1982. Further contended that the vendors of the

petitioner has purchased the said plots, from the developer basing on

the approval granted by the 3rd respondent in T.P.No.30 of 1982, if at

all if any changes made to the said lay out even before passing the

orders of the respondents, in a revision respondent has to make

enquiry, giving an opportunity to the subsequent purchaser, then

only they have to revise the lay out. According to the respondents,

they have revised the T.P.No.30 of 1982 and issued the new T.P. lay

out plan, though T.P.No.22 of 1985 on 15.11.1985 i.e., subsequent

to the purchase of vendor of the petitioner. The vendor of the

petitioner has purchased the said plots vide document No.3592

dated 03.04.1995 hence, the revision of T.P.No.30 of 1982 and

issuing of revised plan No.22 of 1985 is contrary to the principles of

natural justice, without giving any opportunity or without notice to

the subsequent purchasers, said approved plan was revised. Hence,

the same is not binding on the petitioners.

24. In view of the said circumstances, learned counsel for the

petitioner requested to consider the application made by the

petitioner for building plan, as per T.P.No.30 of 1982 and issue

permission accordingly.

25. Learned standing counsel appearing on behalf of the 2nd

respondent, taken objection with regard to the prayer of the writ

petition itself. Though the petitioner has field the present writ

petition, questioning the endorsement dated 20.12.2019, but the

consequential prayer is to grant building permission to the

petitioner, as per the lay out plan of 30 of 1982 is contrary to the

provisions of the Act. The petitioner knows about the existence of

T.P.No.22 of 1985 and if he has any grievance with regard to the said

lay out permission, without questioning the said lay out permission,

he cannot ask for building permission, as per the non-existing

T.P.No.30 of 1982.

26. Standing counsel further submitted that T.P.No.30 of 1982 is

not existing and the authorities only can grant building permission

as per the extension of the plan i.e. T.P.No.22 of 1985.

27. Standing counsel also submitted that as per the T.P.No.22 of

1985, building permission applied by the petitioner is ear marked as

open space and as per the rules, no permission can be granted in the

open space earmarked as per the lay out permission. Hence, the writ

petition is not maintainable and requested to dismiss the same.

28. Learned Government pleader appearing on behalf of the 3rd

respondent has submitted that they have granted permission as per

the rules, through T.P.No.30 of 1982 to the land in survey No.109/1

part for site A, Sy.No.108 for site B, Survey No.109/1 for site C of

Ramanayyapet of Kakinada Municipality, for total extent of 10-89

cents. Subsequently they have received an application for revision of

said lay out and the same was considered as per the existing rules

and issued a revised plan through T.P.No.22 of 1985, as per the

revised plan, plot No.32 of Site B, is revised and shown as open site.

Accordingly, the developer has also registered the gift deed in favour

of the Municipal Corporation, vide document No.4365 of 1987, dated

25.06.1987. As per the schedule of the said document, clearly

establishes that the site of the petitioner i.e. plot No. 32 as per T.P.

No.30 of 1982 is declared as open space in T.P.No.22 of 1985. In

view of the registration made by the developer, in favour of the

Municipal Corporation through Gift Deed, the respondent No.2 is not

entitled to issue any building permission to the said site. He also

submitted that in view of the Apex Court judgment and

G.O.Ms.No.72, dated 20.02.2002, once the open space is specified

and ear marked shall not be proposed to utilize the said space for

any other purpose, except as specified in the lay out.

29. Considering the submissions made by all the counsel and on

perusal of the record, though the petitioner is a bonafide purchaser,

of plot No.32 and part of 33, as per T.P.No.30 of 1985, as per the

revised plan, i.e. T.P.No.22 of 1985, said plot is earmarked as open

space. It is also not in dispute that the said plot was registered in

favour of the 2nd respondent Corporation by way of gift deed, ear

marked as open space. Though there is some force in the

contentions raised by the petitioner, with regard to the issuance of

notice to the effected parties while revising the lay out plan, the fact

remains that the developer himself has made an application in the

year 1983 even before the purchase of the vendor of the petitioner

i.e. 03.04.1985. Hence, as contended by the learned Government

Pleader, the question of issuing notice to the effected parties was not

arise because along with the application, for revision of the lay out

permission, the developer has also submitted encumbrance

certificate of the year 1983. Hence, the authorities would consider

the application and the relevant documents.

30. In the instant case, no doubt the developer with a fraudulent

intention, intentionally to cheat the third parties has sold the plots,

which were ear marked for open space, as per the revised lay out.

He himself made an application for revision of the lay out, and while

pending such application, he sold the said land to the third parties.

The authorities have considered the application and other

documents, issued the revised plan No.22 of 1985 and accordingly

the developer also has transferred the said land by way of gift deed to

the 2nd respondent Corporation. It is also not in dispute that the

subject land is ear marked as open space as per T.P.No.22 of 1985

and in view of the existing T.P.No.22 of 1985.

31. Hence, this court cannot give a direction, to consider the

application of the petitioner for building permission as per non-

existing T.P.No.30 of 1982.

32. In view of the foregoing reasons, the writ petition is dismissed.

The petitioner is at liberty, if at all he has any grievance, he can

approach the competent Civil Court for making claim against the

vendor or developer. No order as to costs.

As a sequel thereto, miscellaneous petitions, if any pending,

shall stand closed.

_____________________ JUSTICE D.RAMESH

Date: 30.09.2021 Pnr

THE HON'BLE SRI JUSTICE D.RAMESH

WRIT PETITION No.1373 of 2020

Dated: .09.2021

Pnr