Gottipati Murali Mohan vs The State Of Andhra Pradesh
2022 Latest Caselaw 8847 AP

 THE HON'BLE SRI JUSTICE VENKATESWARLU NIMMAGADDA

                     WRIT PETITION No. 24396 of 2020

ORDER:

This writ petition is filed under Article 226 of the Constitution of India

claiming the following relief:

" to issue a writ order or direction more particularly one in the nature of writ of Mandamus declaring the action of the respondents 2 to 5 in seeking to construct Grama Sachivalayam/Secretariat Rythu Bharosa Center Wellness Center in the open space in an extent of 1273.61 square yards earmarked on the south of and abutting plot no.52 in approved layout L.P.No. 37/2006/VJA of VGTM (Vijyawada, Guntur, Tenali and Mangalaglri) Urban Development Authority in R.S. No.179/1 (P), 3 (P), 180/3( P), 4, 181/1 (P) 2, 3, 4 (P) of Enikepadu Village, Vijayawada Rural Mandal, Krishna District of petitioner's layout as arbitrary illegal and without Jurisdiction besides violative of Articles 14 and 21 of the Constitution of India besides being contrary to the Judgment in W.P. No. 1093/2020 dt. 01.05.2020 and another Judgment reported in 1997 (6) ALD P277 of the Hontle High Court of Andhra Pradesh and consequently to direct the respondents not to construct any structures including Grama Sachivalayam/Viliage Secretariat in open space mentioned above and to pass such other order or orders as this Hon'ble Court may deem fit just and proper in the circumstances of the case"

2. Learned counsel for the petitioner submits that the petitioner and others

are the absolute owners and possessors of land in an extent of Acs.6.19 cents in

Sy.Nos.179/1 (P), 3 (P), 180/3( P), 4, 181/1 (P) 2, 3, 4 (P) of Enikepadu

Village, Vijayawada Rural Mandal, Krishna District, for which they got a lay

out approved for house sites vide L.P.No.37/2006/VJA dated 25.09.2006 by the NV,J WP No.24396 of 2020

VGTM (Vijyawada, Guntur, Tenali and Mangalaglri) Urban Development

Authority under Section 13 of the A.P.Urban Areas (Development) Act, 1975.

Pursuant to the layout approval conditions, the subject ladout land was

demarcated, roads were formed as per norms and left an open space meant for

park and children play ground were provided in accordance with the provisions

of the Urban Development Authorities Act. While so, the respondent authorities

are proposing to construct Grama Sachivalayam, Rytu Bharosa and Wellness

center at the subject earmarked open space meant for park, children play ground,

etc., without any authority and contrary to law.

i) Learned counsel for the petitioner also submits that as per the terms of

layout approval, the open space of an extent of 1273.61 square yards in

R.S.No.181/3 and 4 of Enikepadu village, which is abutting plot No.52, was

alienated in favour of the Gram Panchayat through a registered gift deed along

with all the layout roads, as such, the open space as well as the roads in the

sanctioned layout are vested with the Gram Panchayat.

ii) It is contended that according to Rule 11(7) of the Andhra Pradesh Gram

Panchayat Land Development (Layout and Building) Rules, 2002 issued vide

G.O.Ms.No.67 dated 26.02.2002 and amended G.O.Ms.No.274 dated

12.06.2007, prior to the technical approval from Director of Town and Country NV,J WP No.24396 of 2020

Planning, it is mandatory that certain permissions shall be obtained, wherein

procedure is enumerated for granting layout approvals in gram panchayats. It is

further contended that Rule 13 of the Andhra Pradesh Land Development

(Layout and Sub-Division) Rules, 2017 (for short 'Rules, 2017) issued vide

G.O.Ms.No.275 dated 18.07.2017 made it clear that the lands so transferred to

local bodies and panchayats shall not be utilized other than the purpose for

which it is earmarked for. In view of the above statutory rules, the respondents -

authorities shall not be permitted to convert the layout open space into any other

purpose, other than for which it was earmarked. It is contended that as of now,

the respondents are proposing to construct Grama Sachivalayam, Rytu Bharosa

Kendram and Wellness Centre in the subject open space provided in the

sanctioned layout, which is contrary to Rule 13(1) of the Rules, 2017, as well as

the law laid down by the Hon'ble Supreme Court in Bangalore Medical Trust

vs. B.S. Muddappa and others1 and Purushottam vs. State of Karnataka and

others2 and on the strength of the principles laid down in the above judgments,

the learned counsel contends that the proposed action of the construction of

Grama Sachivalayam, Rytu Bharosa Kendram and Wellness Centre in the open

space shall not be permitted and in case the respondents have completed the

1 (1991) 4 Supreme Court Cases 54 2 (2014) 3 Supreme Court Cases 721 NV,J WP No.24396 of 2020

constructions, such constructions are liable to be demolished. The learned

counsel, therefore, prays to allow the writ petition.

3. On 23.12.2020, while ordering notice before admission, this Court passed

an interim order restraining the respondents from construction Grama

Sachivalayam/Rytu Bharosa Center/Wellness center proposed in the open space

in an extent of 1273.61 square yards as described in the writ affidavit.

4. The respondents did not prefer to file any counter affidavit even though

two years time has elapsed after filing the writ petition and they did not even

plead for filing counter affidavit at the time of hearing the matter.

5. Heard Sri P. Prabhakara Rao, learned counsel for the petitioner, learned

Government Pleader for Panchayat Raj appearing for respondent Nos.1 to 3 and

Sri I. Koti Reddy, learned standing counsel for respondent Nos.4 and 5.

6. Admittedly, the petitioner and others are the absolute owners and

possessors of land in an extent of Acs.6.19 cents in Sy.Nos.179/1 (P), 3 (P),

180/3( P), 4, 181/1 (P) 2, 3, 4 (P) of Enikepadu Village, Vijayawada Rural

Mandal, Krishna District, for which they got a lay out approved for house sites

vide L.P.No.37/2006/VJA dated 25.09.2006 by the VGTM (Vijyawada, Guntur,

Tenali and Mangalaglri) Urban Development Authority, Vijayawada, under NV,J WP No.24396 of 2020

Section 13 of the A.P.Urban Areas (Development) Act, 1975. They are the

immediate interested and affected persons to file the present writ petition. It is

also an admitted fact that as per the requirement of law, the open space of an

extent of 1273.61 square yards in R.S.No.181/3 and 4 of Enikepadu village,

which is abutting plot No.52, was alienated in favour of the Gram Panchayat

through a registered gift deed.

7. One of the main objects of public parks or play grounds is the promotion

of the health of the community by means of ventilation and recreation. It is the

preservation of the quality of life of the community that is sought to be protected

by means of regulations. The legislative intent is to preserve a public park or

public playground in the hands of the general public or any other public

authority and prevent private hands from grabbing them for private ends.

8. Public interest or general good or social betterment have no doubt priority

over private or individual interest but it must not be a pretext to justify the

arbitrary or illegal exercise of power. It must withstand scrutiny of the

legislative standard provided by the Statute itself. The authority exercising

discretion must not appear to be, impervious to legislative directions. Public

park is a place reserved for beauty and recreation is associated with growth of

the concept of equality and recognition of importance of common man. Earlier NV,J WP No.24396 of 2020

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. Grama Sachivalayam or Rytu Bharosa

Kendram or Wellness Centre may not be undermined but a park is a necessity

not a mere amenity. Grama Sachivalayam or Rytu Barosa Kendram or Wellness

Centre cannot be a substitute for a public park.

9. In Bangalore Medical Trust vs. B.S. Muddappa and others (referred

supra), the Hon'ble Apex Court held that protection of the environment, open

spaces for recreation and fresh air, playgrounds for children, promenade for the

residents, and other conveniences or amenities are matters of great public

concern and of vital interest to be taken care of in a development scheme. It is

that public interest which is sought to be promoted by the Act. The public

interest in the reservation and preservation of open spaces for parks and

playgrounds cannot be sacrificed by leasing or selling such sites to private

persons for conversion to some other user. Any such act would be contrary to

the legislative intent and inconsistent with the statutory requirements.

Reservation of open spaces for parks and play grounds is universally recognised

as a legitimate exercise of statutory power rationally related to the protection of NV,J WP No.24396 of 2020

the residents of the locality from the ill-effects of urbanisation. Crowded urban

areas tend to spread disease, crime and immorality.

10. In Purushottam vs. State of Karnataka and others (referred supra),

allotment of civil amenity site to a petroleum outlet was challenged, wherein the

Hon'ble Apex Court emphasised the conceptual distinction between 'public

parks and playgrounds' forming one category of 'space' and 'civic amenities'

and held that once an area has been stamped with the character of a particular

civic amenity by reservation of that area for purpose, it cannot be diverted to any

other use even when it is transferred to another party.

11. Even according to Condition No.17 of the proceedings in RC.No.C2-

763/2005 dated 25.09.2006 issued by the VGTM (Vijyawada, Guntur, Tenali

and Mangalaglri) Urban Development Authority, Vijayawada, the open space

provided in the sanctioned layout plan L.P.No.37/2006/VJA for parks, play-

ground, community facilities, schools etc. shall not be utilized for any other use

without prior approval of Vijayawada-Guntur-Tenali-Mangalagiri Urban

Development Authority.

12. In this context, it is apposite to extract Rule 13 of the Rules, 2017 and it

is as follows:

13. Reservation and Allotment of Land NV,J WP No.24396 of 2020

(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.

-----

(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.

13. According to Rule 13(2) of the Rules, 2017, the area reserved for Public

Open Space shall vest with the Local Authority and such

area shall be used only for Parks, Playgrounds, Gardens, Nursery, NV,J WP No.24396 of 2020

Recreational Open space etc. and shall not be utilized for any

purpose other than the purpose for which it is transferred.

14. Hence, a conjoint reading of Condition No.17 of the proceedings dated

25.09.2006 and Rule 13(2) of the Rules, 2017, it is manifestly clear that the area

reserved for public open space shall vest with the local authority i.e. gram

Panchayat and such area shall be used only for parks, playgrounds, gardens and

recreational open space, but not for any other purpose. Rule 13(10) of the Rules,

2017 elucidated that the Government or the Gram Panchayat 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.

15. In view of my foregoing discussion, I am of the considered view that

once an area has been stamped with the character of a particular civic amenity

by reservation of that area for purpose, it cannot be diverted to any other use

even when it is transferred to another part. Hence, the writ petition is liable to be

allowed, since, as per Condition No.17 of the proceedings dated 25.09.2006, the

area reserved for public open space shall vest with the local authority and

Government or the Gram Panchayat have no jurisdiction to convert such land

reserved for public purpose such as park or playground, utilities, amenities NV,J WP No.24396 of 2020

affordable housing and for some other purpose as per Rule 13(1) of the Rules,

2017.

16. In the result, the Writ Petition is allowed directing the respondents not to

make construction of Grama Sachivalayam, Rytu Bharosa Kendram and

Wellness Centre in the open space of an extent of 1273.61 square yards in

R.S.No.181/3 and 4 of Enikepadu village, Vijayawada Rural Mandal, Krishna

District. No order as to costs.

Consequently, miscellaneous applications pending if any, shall stand

closed.

___________________________________________ JUSTICE VENKATESWARLU NIMMAGADDA 18th November, 2022 cbs NV,J WP No.24396 of 2020

THE HON'BLE SRI JUSTICE VENKATESWARLU NIMMAGADDA

WRIT PETITION No.24396 of 2020

18th November, 2022

cbs