M/S. Raghava Estates And ... vs The State Of Andhra Pradesh
2022 Latest Caselaw 1158 AP

           HON'BLE SRI JUSTICE TARLADA RAJASEKHAR RAO

                   WRIT PETITION No.22002 of 2020

ORDER:

Initially the writ petition was filed aggrieved by the inaction of the

respondent Nos.1 and 2 in issuing Transferable Developmental Rights

(TDR) in favour of the petitioners for the land surrendered by them for an

extent of Ac.4.92 cents or equivalent to 23,817.28 sq. yards in survey

Nos.27/1, 28, 28/2, 30, 30/2, 42/3, 43/2, 43/3, 43/4, 52/4, 52/6, 60/6,

61/1, 61/4, 61/7 177/1, 179/2, 180/4, 180/5, 180/8, 180/9, 181/6,

situated at Proddutur Village, Kankipadu Mandal, Krishna District, for the

formation of 60 feet Zonal Development Plan Road, is being arbitrary,

illegal, violation of provisions including G.O.Ms.No.678, Municipal

Administration & Urban Development (M) Department, dated 07.09.2007

as well as clause 168 of the A.P. Building Rules, 2017. Later, an I.A.

1/2021 was filed seeking amendment of the prayer to setaside the Memo

No.1091131/MAU 01-CRDA 2/2020, dated 13.02.2020. Consequently,

prayed to direct the respondents 1 and 2 to issue TDR certificates in

favour of the petitioners.

2. The case of the petitioners is that they surrendered an extent of

Ac.4.91 cents in favour of the Vijayawada Guntur Tenali Mangalagiri

Urban Development Authority (VGTMUDA). Later, the said VGTMUDA

was transformed into Amaravathi Metro Region Development Authority i.e.

respondent No.2 herein. The said land was transferred to for the Zonal

Development Plan, 60 feet road was laid which is formed part of the road

from Bandar road to Pamula canal in Proddutur village and the said road

was laid by the petitioners herein way back in the year, 2010. The

Petitioners were permitted to lay the road and issued NOC for formation

and development of the 60 feet road, vide proceedings bearing

Rc.No.C.8.10492/2008, dated 14.05.2009.

3. The Proddutur Grampanchayat accepted and acknowledged the

work executed by the petitioners and issued confirmation letters in favour

of the petitioners. The petitioners further submits that the entitlement of

TDR certificates is governed by several G.O.s and initially the respondent

No.1 issued G.O.Ms.No.678, Municipal Administration and Urban

Development (M) Department, dated 07.09.2007 duly initiating the

process of issuing TDR in favour of the beneficiaries. Subsequently,

several G.O.s are issued from time to time. At present G.O.Ms.No.223,

Municipal Administration and Urban Development (M) Department, dated

09.07.2018 is in force and as per the aforesaid G.O., an amendment is

brought to Rule 168, which mandates that the person who contributed for

the development of roads for public purpose in master plan/peripheral

road rules are entitled to 400% of value of such area surrendered. Instead

of issuing the TDR certificates in favour of the petitioners, the respondent

Nos.1 and 2 are postponing to issue the TDR certificates for one reason or

the other though the petitioners submitted several representations since

2008. Hence the present writ petition is filed seeking a direction to the

respondents to issue TDR certificates for the land surrendered by the

petitioners herein.

4. The respondent No.1 herein filed counter denying the averments

made in the writ affidavit filed in support of the writ petition contending

that generally formation/widening of the new master plan, Zonal

Development plan roads have to be taken up by the local body concerned.

However, the petitioners themselves have come forward requesting that

the 60 feet Zonal Development Plan road will be taken up by themselves

with their own funds and this will lessen the financial burden on local

bodies and also facilitate accessibility to the public at large. The erstwhile

VGTMUDA has accorded permission to the petitioners for formation and

development of proposed 60 feet Zonal Development Plan road vide letter

Lr. Rc.No.C8-10482/2008, dated 14.05.2009 subject to handing over the

same to the local bodies at free of cost for public purpose. In the said

letter, the then VGTMUDA has not mentioned about the issue of TDR

certificates, which shows that the petitioners had accepted conditions of

the VGTMUDA. The respondent No.1 further submits that the petitioners

have got approval in respect of 10 layouts from 2017 to 2019 for the Zonal

Development Plan road which is approach road to that layouts and further

submitted that the respondent No.1 has issued Memo

No.1091131/MAU01-CRDA-2/2020 dated 13.02.2020, as per the memo

when earlier permission was accorded, the petitioners were not entitled for

the TDRs as they have applied for layout permission in the master plan

roads passing through the sites becoming part of layout and the land

owners have to hand it over to the local body free of cost and they cannot

claim TDRs or any kind of compensation in this regard as per prevailing

layout rules. Accordingly, G.O.Ms.No.180, Municipal Administration &

Urban Development (M) Department, dated 01.10.2020 was issued in the

same lines which is a clarification to the memo. Hence, it is prayed to

dismiss the writ petition as the petitioners are not entitled for TDR

certificates as they have applied for layouts and permissions were granted

for the layouts.

5. The respondent No.2 herein filed the counter reiterating the facts

stated by the respondent No.1 and further stated that the petitioners are

not entitled for TDR bonds @ 1:4 ratio as amended by G.O.Ms.No.119,

Municipal Administration & Urban Development (M) Department amended

by G.O.Ms.No.223, Municipal Administration & Urban Development (M)

Department, dated 09.07.2018 cannot be allowed as the lands were

surrendered in the year 2009 because the applicability of G.O. ratio of

TDR bonds in 2009 and 2018 are not one and the same. It is admitted by

the counsel for the respondent No.2 that the petitioners herein are entitled

for the TDR bonds at the ratio of 1:1 instead of 1:4 and if at all the writ

petitioners are entitled for TDR at what ratio they are entitled.

6. The Learned Counsel for the petitioners submits that the memo

No.1091131/MAU01-CRDA-2/2020 dated 13.02.2020, came into light

after filing of the writ petition and the said memo is not binding on the

petitioners as it was issued subsequent to the filing of the writ petition

and the vested right cannot be taken away by issuing a memo

retrospectively having no legal sanctity and it is contrary to the law and

the said memo is not binding upon the petitioners. Inter alia it was

contended that the memo dated 13.02.2020 is nothing but an anti dated

and fabricated one and it is an afterthought because it cannot be taken

into consideration for issuing of TDR certificates. Consequently the

petitioners herein filed I.A. No.1 of 2021 for amendment of prayer to set

aside the memo and the same was allowed by order dated 12.11.2021.

7. In view of the rival contentions, the following issues arise for

consideration.

(1) Whether the memo stated above is binding on the petitioners?

(2) Basing upon the memo, the petitioners are disentitled for the TDR certificates and if they are entitled at what ratio they are entitled to?

Issue No.1:

8. The contention of the learned counsel for respondent No.1 is that

the petitioners have applied for layout approvals and the layout approvals

were sanctioned in their favour and approved by the concerned

authorities. As per the Layout Rules, the petitioners have to allot some

land for formation of the road. Hence, the petitioners are not entitled for

the TDR certificates. The respondent No.1 submitted that as per the Memo

No.1091131/MAU01-CRDA-2/2020 dated 13.02.2020, basing on the

layouts granted by the authorities, the petitioners are not entitled for the

TDR certificates. Accordingly, the respondent No.1 has issued memo No.

1091131/MAU01-CRDA-2/2020 dated 13.02.2020 stating that the

petitioners herein are not entitled for TDR certificates or any kind of

compensation in this regard, as per the prevailing Layout Rules. Basing

on the memo, the respondent No.1 has issued G.O.Ms.No.180, dated

01.10.2020, which is clarification to the Memo and requested this Hon'ble

Court to dismiss the writ petition for the above stated reasons. Refuting

the said contention, the counsel for the petitioners herein submit that the

Memo issued by the respondent No.1 is not binding upon the petitioners,

as the Memo is in the nature of executive instructions and that cannot be

applicable for the act done for the past. Inter alia the counsel for the

petitioners further submits that the G.O.Ms.No.180, Municipal

Administration and Urban Development (M) Department, dated

01.10.2020 is only prospective effect and does not take away the rights

vested in the petitioners vide G.O.Ms.No.628, Municipal Administration

and Urban Development (M) Department dated 07.09.2007,

G.O.Ms.No.119, Municipal Administration and Urban Development (M)

Department, dated 28.03.2017, G.O.Ms.No.223, Municipal Administration

and Urban Development (M) Department, dated 09.07.2018 and the G.O.s

also does not specifically say that the G.O.Ms.No.180, Municipal

Administration and Urban Development (M) Department, dated

01.10.2020 was issued by superseding of the above stated G.O.s. Hence,

the contention raised by the respondent No.1 is not tenable and prayed to

setaside the memo No. 1091131/MAU01-CRDA-2/2020 dated

13.02.2020, and to direct respondents to issue TDR certificates.

9. For the above said principle this Court relies on the Judgment

2013 Law Suit (Supreme Court) 151 in Marripati Nagaraju Vs Government

of Andhra Pradesh, that the State in exercise of its powers conferred upon

it under the proviso appended to Article 309 of the Constitution of India,

is entitled to make Rules with retrospective effect and retroactive

operation. Ordinarily, in absence of any Rule and that too a Rule which

was expressly given retrospective effect, the Rules prevailing as on the

date of the notification are to be applied. If we do something today, this

Court opines that the law applying to it should be the law in force today

but not tomorrow's backward adjustment of it. In the present writ

petition, the Memo was issued in the year 2020 and the petitioners herein

surrendered their land in 2009 for the Zonal Development of the 60 feet

road and the G.O.Ms.Nos.678, 119 and 223, which are in existence prior

to the said memo and as per the said G.O.s the petitioners are entitled for

TDR certificates irrespective of Layout Rules as stated in the Memo. The

said principle no more res integra and it is well settled. Hence, the

contention of the respondent basing on the memo as well on the

G.O.Ms.180 cannot take away the rights which were vested in the

petitioners. Hence, the petitioners are entitled for the TDR certificates and

their Memo No.1091131/MAU01-CRDA-2/2020, dated 13.02.2020 and

the G.O.Ms.No.180, dated 09.07.2018 is not binding upon the petitioners.

Accordingly the issue is answered.

Issue No.2:

10. The respondent No.2 though reiterated the facts stated by the

respondent No.1 admitted in their counter that the petitioners herein are

entitled for the TDR bonds @ ratio of 1:1 but not at the ratio of 1:4 and the

respondent No.1 submitted that the petitioners have kept quite since

2009. Hence, they are not entitled for the TDR certificates at the ratio of

1:4 as per G.O.Ms.No.223, Municipal Administration and Urban

Development (M) Department, dated 09.07.2018 equivalent to 400% of

built up area of such area surrendered. The petitioners, refuting

contention raised by the respondent No.2, submit that they are making

representations since 2009 onwards and that the respondents have not

moved a little finger to grant TDR certificates in favour of the petitioners

herein. The counsel for the petitioners submitted that the petitioners have

made their 1st representation dated 19.09.2008, and a reply was given

vide ROC No.C8.10492/2008, dated 23.12.2008 stating that the same will

be considered, as the respondents have not issued TDR Certificates as per

the above said proceedings. The petitioners herein have filed another

representation dated 07.04.2009. Later they have filed a 3rd

representation dated 13.07.2018 and 4th representation, dated 11.10.2018

and 5th representation dated 07.06.2019. Despite the several

representations made, the respondents have not issued the TDR

certificates to the petitioners. This Court found that there is a gap of 9

years between the 1st representation and 3rd representation which shows

the petitioners' negligence/latches /lapses. Meanwhile, the respondent

No.1 has issued G.O.Ms.No.119, dated 28.03.2017 regarding the

entitlement of the ratio of the built up area on the land surrendered by the

petitioners. Later the Government has issued G.O.Ms.No.223, dated

09.07.2018 regarding the entitlement of the TDR Certificate @ of 400%

equivalent to the surrendered land. Hence, for the reasons stated in para

8 & 9 the Memo No.1091131/MAU01-CRDA-2/2020 dated 13.02.2020 is

not binding on the petitioners and the petitioners herein are entitled for

TDR Certificates as per the G.O.Ms.No.223, dated 09.07.2018. Hence, the

issue is answered in favour of the writ petitioners herein.

11. For the reasons stated above, the writ petition is allowed setting

aside the Memo No.1091131/MAU01-CRDA-2/2020, dated 13.02.2020.

Consequently the respondents are directed to issue TDR certificates as per

G.O.Ms.No.223, Municipal Administration and Urban Development (M)

Department, dated 09.07.2018, as expeditiously as possible, preferably

within a period of two months from the date of receipt of a copy of this

Order. No costs.

12. Consequently miscellaneous applications pending, if any, in the

writ petition, shall stand closed.

__________________________________ TARLADA RAJASEKHAR RAO, J.

04.03.2021 HariN

HON'BLE SRI JUSTICE TARLADA RAJASEKHAR RAO

WRIT PETITION No. 22002 of 2020

04.03.2022

HariN