Andhra Pradesh High Court - Amravati

Marisetti Posiyya, Died Per Lrs 14 ... vs The State Of Andhra Pradesh, on 21 September, 2022

 HON'BLE SRI JUSTICE VENKATESWARLU NIMMAGADDA

                 WRIT PETITION No. 14459 of 2019

ORDER:

This writ petition is filed to declare the action of the Secretary of

the 2nd respondent-Grampanchayat in not releasing building permissions

along with approved plans to the petitioners, in spite of resolution dated

01.05.2019 passed by the Grampanchayat granting building permissions

and payment of requisite fee, as illegal and arbitrary.

2. Briefly, the case of the petitioners is that they are the permanent

residents of Kukunuru Village, Tallapudi Mandal, West Godavari

District. They purchased small extents of residential plots in

R.S.Nos.41/2, 41/3A and 41/3B of the said village from the original

owners under different registered sale deeds for valuable sale

consideration. Since then, they have been in possession and enjoyment

of their respective plots. The petitioners submitted applications along

with requisite plans on 20.10.2017 and 02.11.2017 to the 2nd respondent

seeking permission for construction of houses in their respective plots.

The plans were rejected by the Secretary of the Grampanchayat on

24.10.2017 and 06.11.2017 vide orders dated 06.11.2017 on the ground

that the plots are not in the approved layout. Challenging the said orders

of rejection, on 10.11.2017 the petitioners preferred individual appeals

NV,J W.P.No.14459 of 2019

before the Grampanchayat under Section 128 of the A.P. Panchayat Raj

Act, 1994 (for short 'the Act'). As the appeals are not disposed of even

after lapse of more than one year, the petitioners filed W.P.No.2686 of

2019 before this Court. The said writ petition was disposed of by an

order dated 05.03.2019 directing the Grampanchayat to pass

appropriate orders on the appeals within a period of eight weeks. In

compliance of the orders of this Court, the 2nd respondent passed a

resolution dated 01.05.2019 wherein the 2nd respondent considered the

appeals of the petitioners, approved their plans and granted building

permissions. However, the Secretary of the Grampanchayat has not

issued any proceedings releasing the building permissions along with

the approved plans in favour of the petitioners. Having no other go, the

petitioners preferred the present writ petition.

3. A counter affidavit is filed on behalf of the 2nd respondent-

Grampanchayat stating that 13 applications seeking building

permissions are pending with the 2nd respondent. Then, the then

Panchayat Secretary of the Grampanchayat sent his report dated

02.03.2017 to the District Panchayat Officer informing that without any

layout permission/approval, a layout was formed in an extent of

Acs.3.60 cents with 50 plots in Sy.Nos.41/1, 41/2 and 41/3B of

NV,J W.P.No.14459 of 2019

Tallapudi Village. He further reported that the existing roads of layout

are not 33 feet width roads as required and 10 percent open space was

also not shown in the layout. Further, the roads and the open space were

not alienated by way of gift in favour of the Grampanchayat. For grant

of building permission, there should be 33 feet wide road and open

space in the layout. Whereas, in the present layout, the existing roads are

only 18 feet wide roads and there is no open space for common purpose.

In view of the above, the Grampanchayat is not in a position to grant

building permissions to the petitioners' plots which are situated at the

unauthorised layout. If the petitioners submit a revised layout with 33

feet wide road and 10% common site, the Grampanchayat will grant

building permissions by collecting the required fee. There are no

grounds to grant the relief sought by the petitioners and the writ petition

is liable to be dismissed.

4. The petitioners submitted a reply to the counter affidavit filed on

behalf of the Grampanchayat denying the averments made therein and

stating that the subject layout of Kukunuru Village is a part of notified

gramakantam and as such, the Department or the Grampanchayat is not

maintaining 30 feet wide roads at the subject sites. In respect of the

abutting survey number of the subject plots wherein the road width is 18

NV,J W.P.No.14459 of 2019

feet, the Grampanchayat granted permissions. Therefore, the petitioners

are similarly placed persons and the Grampanchayat cannot discriminate

among equals.

5. Heard Sri C.V.R. Rudra Prasad, learned counsel for the

petitioners, learned Assistant Government Pleader for Panchayat Raj

appearing for the 1st respondent, and Sri I. Koti Reddy, learned standing

counsel for the 2nd respondent-Grampanchayat.

6. Admittedly, in compliance of the orders of this Court dated

05.03.2019 in W.P.No.2686 of 2019, the 2nd respondent-Grampanchayat

after consideration of the applications of the petitioners thoroughly

passed a resolution dated 01.05.2019 approving its decision for grant of

approval of plans and building permissions to the petitioners. In the

counter affidavit filed on behalf of the 2nd respondent, it is admitted that

still there are 18 feet wide roads in the subject layout. It is also an

admitted fact that Kukunuru Village is a notified gramakantam.

7. It is the main contention of the petitioners that though the

Grampanchayat passed a resolution dated 01.05.2019 granting building

permissions to the petitioners, the Secretary of the 2nd respondent-

Grampanchayat rejected the plans of the petitioners and refused to issue

NV,J W.P.No.14459 of 2019

building permissions to the petitioners. In this regard, it is appropriate to

refer to Section 32 of the Act which reads as under:

"32. Functions of the Executive Authority:- The Executive Authority shall -

(a) be responsible for implementing the resolutions of the Grampanchayat and of the Committee thereof:

Provided that where the Executive Authority considers that a resolution has not been legally passed or is in excess of the powers conferred by this Act or that if carried out, it is likely to endanger human life or health or the public safety, the Executive Authority shall:

          (i)      where he is the Sarpanch directly;
          (ii)     Where he is not the Sarpanch, through the

Sarpanch, refer the matter to the Commissioner for orders, and his decision shall be final;

(b) control all the officers and servants of the Grampanchayat;

(c) exercise all the powers and perform all the functions specifically conferred or imposed on the Executive Authority by or under this Act and subject to all restrictions and conditions imposed by or under this Act, exercise the executive power for the purpose of carrying out the provisions of this Act and be directly responsible for the due fulfillment of the purpose thereof."

NV,J W.P.No.14459 of 2019

8. Section 32 of the Act envisages that the Executive Authority shall

be responsible for implementing the resolutions of the Grampanchayat

and of the Committee thereof and that if the Executive Authority

considers that the resolution is illegally passed or against the public

interest, the Executive Authority shall brought it to the notice of the

Head of the Department/Commissioner. In the instant case, the

Executive Authority i.e., the then Secretary of the Grampanchayat

rejected the plans of the petitioners only on the ground that the plots of

the petitioners are not in the approved layout. He neither pointed out

that the resolution was passed illegally nor he referred the matter to the

Commissioner for orders. Therefore, the Executive Authority has to

implement the resolution passed by the Grampanchayat. But, the

Executive Authority of the 2nd respondent, in violation of the provisions

of Section 32 of the Act, is acting against the interest of the

Grampanchayat and inventing some of the factors which are not relevant

and not substantiated by any evidence in the counter affidavit.

9. It is contended in the counter affidavit filed on behalf of the

Grampanchayat that for grant of building permission, there should be 33

feet wide roads and open space in the layout. In the present layout, only

18 feet wide roads are shown and no open space was left over for

NV,J W.P.No.14459 of 2019

common purpose. In view of the same, the Grampanchayat is not in a

position to grant building permissions to the petitioners in the

unauthorised layout. It is pointed out by the petitioners in their reply

affidavit that as per Rule 2 (31) of the A.P. Grampanchayat Land

Development (Layout and Building) Rules, 2002 (for short 'the Rules,

2002'), which governs grant of building permissions in the

Grampanchayat limits, defines village settlement or gramakantam and

Rule 18 (1) of the Rules, 2002 prescribes the requirement of minimum

approach road width is 3.6 meters only. The material papers filed by the

petitioners along with the reply affidavit categorically reveals that the

plots owned by the petitioners are situated within

gramakantam/settlement area. It is an admitted fact that there is 18 feet

width road which is just near to 5 meters width and more than the

minimum requirement of 3.6 meters as per Rule 18 (1) of the Rules,

2002. Therefore, the contention of the Grampanchayat that that for grant

of building permission, there should be 33 feet wide roads, is not

sustainable.

10. A learned Single Judge of the combined High Court of Andhra

Pradesh at Hyderabad vide judgment dated 20.01.2014 in W.P.No.37983

of 2014 has dealt with the aspect of acquisition of land for road

NV,J W.P.No.14459 of 2019

widening and payment of compensation to the affected parties. In paras

13, 24, 25, 26 and 27 of the said judgment, it is held as under:

"13. But Section 146 of the GHMC Act contemplates acquisition of immovable property by agreement between the Commissioner and the owner of the land in the event the said land is required by the Corporation; and when he is unable to do so, Section 147 of the GHMC Act provides for acquisition of the land under the provisions of the Land Acquisition Act, 1894 as amended from time to time. The provision in Rule 16(a) of the Rules, which states that unless the area affected in road widening as per the statutory plan/master plan road or Circulation network is surrendered free of cost, no development permission shall be given, in my opinion, is ultra vires provisions of the GHMC Act. Rule 16(a) of the Rules is not in accordance with the GHMC Act, and is contrary to Section 146/Section 147 thereof. It is settled law that in case of conflict between delegated legislation and its parent substantive Act, the latter would prevail (See Novva Ads vs. Deptt. of Municipal Admn. And Water Supply). Therefore, the provision requiring land owner to surrender land free of cost merely because a portion of the land owned by him is shown as road affected in a statutory plan/master plan or circulation network or as required to be widened as per road development plan is ultra vires provision of the GHMC Act.

Such compulsory deprivation of property without paying any compensation violates Articles 14 and 300-A of the

NV,J W.P.No.14459 of 2019

Constitution of India. The respondents' conduct amounts to coercing the petitioner to part with her property without acquisition. In my opinion, it would be unjust to make the petitioner to suffer in this manner.

xxxxxxx xxxxxxxxxxxx xxxxxxxxx xxxxxxxxx

24. In my opinion, Section 17 of the above Act is not attracted since the Master Plan has not designated the petitioner's property as an open space or to be unbuilt or designated it as subject to compulsory acquisition. But I am of the opinion that Section 18 is mandatory and if the respondents require the petitioner's property for the 200' Master Plan Road, they are bound to acquire it under the provisions of the 2013 Act.

25. In view of this provision, and law declared by the Supreme Court in the above referred decisions, it is incumbent on the part of the respondents to initiate proceedings under Section 18 of the AP Urban Areas (Development) Act, 1975 in accordance with the provisions of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 for acquisition of the land of the petitioner for road widening and pay compensation to the petitioner. If not, the petitioner would be deprived of her valuable property without compensation.

26. Since according to 2nd respondent, 40' out of the petitioner's land is required for road widening leaving only balance of 5', and petitioner cannot put to use such small

NV,J W.P.No.14459 of 2019

area for construction, it is obligatory on the part of 2nd respondent to acquire the entire property of the petitioner. Otherwise, it would amount to legitimizing the arbitrary and expropriatory action contrary to the provisions of the GHMC Act as well as the AP Urban Areas (Development) Act, 1975 and the law declared by the Supreme Court in the above decisions. Similar view has been taken by this Court in its judgment dt.02.09.2014 in W.P.No.1995 of 2012 and in judgment dt.16-10-2014 in W.P.No.24427 of 2014.

27. Therefore, the respondents are directed to initiate proceedings under Section 18 of the AP Urban Areas (Development) Act, 1975 in accordance with the provisions of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013, for acquisition of the entire land owned by the petitioner for road widening and pay compensation to the petitioner. The requisition for the said purpose should be sent by the second respondent to the first respondent within a period of two weeks from the date of receipt of a copy of this order; the first respondent shall initiate the process for acquisition for road widening within a period of one month thereafter; and conclude the same within a period of three months."

11. In view of the aforesaid judgment, if the Grampanchayat requires

ány part of the petitioners property for widening of roads, it is bound to

acquire it as per law. But it is to be noted here that the Executive

NV,J W.P.No.14459 of 2019

Authority of the Grampanchayat has not initiated any action for

acquisition of any part of the petitioners'property.

12. For the foregoing reasons, this Court is of the opinion that the

conduct of the Executive Authority of the 2nd respondent in not releasing

the building permissions to the petitioners as per the resolution dated

01.05.2019 passed by the Grampanchayat is illegal and arbitrary and

contrary to the object of the Act and in violation of Section 32 of the

Act. Therefore, the petitioners are entitled for building permissions