Andhra Pradesh High Court - Amravati
B. Bhargava Laksmi, vs The State Of Andhra Pradesh, on 4 August, 2021
Author: Battu Devanand
Bench: Battu Devanand
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HON'BLE SRI JUSTICE BATTU DEVANAND
Writ Petition No.8188 OF 2021
O R D E R:
This Writ Petition has been filed praying to issue an appropriate writ, order or direction more particularly one in the nature of Writ of Mandamus, declaring the impugned orders of the 2nd respondent in rejecting the petitioners' applications for building permission vide orders in Lr.No.21/2021, dated 26.01.2021 for plots admeasuring 248.61 Sq. yards in Plot No.38, 216.66 Sq. yards in Plot No.36, 233.33 Sq. yards in Plot No.33 & 34 and 216.66 Sq. yards in Plot No.35 in Sy.No.165 of Banaganapalle Village, Banaganapalle Mandal, Kurnool District vide registered sale deed, dated 08.06.2020 with document bearing Nos.1101/2020, 1102/2020, 1100/2020, 1103/2020 respectively on untenable and flimsy grounds, as illegal, arbitrary and consequently set aside by the aforesaid impugned orders with a direction to grant the building permissions to the petitioners for their aforesaid respective plots and pass such other order or orders as are deemed fit and proper.
2) Heard Sri K. Rathanga Pani Reddy, learned counsel for the petitioners and the learned Government Pleader for 2 Panchayat Raj appearing for 1st Respondent and Sri V. Vinod K Reddy, learned Standing Counsel for Gram Panchayat appearing for 2nd respondent and perused the material available on record. With their consent, the writ petition is disposed of at the stage of admission.
3) The case of the petitioners is that they have purchased plots admeasuring 248.61 Sq. yards in Plot No.38, 216.66 Sq. yards in Plot No.36, 233.33 Sq. yards in Plot No.33 & 34 and 216.66 Sq. yards in Plot No.35, situated in Survey No.165 of Banaganapalle Village, Banaganapalle Mandal, Kurnool District, vide Registered sale deeds bearing Nos.1101/2020, 1102/2020, 1100/2020 and 1103/2020, dated 08.06.2020 respectively, for a valid consideration.
4) The land in Survey No.165 of Banaganapalle Village falls under 10th Ward and it is the residential area as per the certificate issued by the Sub Registrar, Banaganapalle in Lr. No.Nil/2020, dated 16.03.201 wherein it is stated that Survey No.165 falls under 10th Ward, B C Gurreddy Colony, Banaganapalle and market value per square yard is Rs.1,320/-. The colony is filled with 70% of houses constructed after obtaining permissions from the 2nd respondent. The fact that the land in Survey No.165 is being 3 considered as residential area even as per the land use certificate issued by the Tahsildar, Banaganapalle in Dis.No.A/775/2017, dated 24.11.2017.
5) As land has become residential area, the 2nd respondent has been granting building permissions to individuals for the past 15 years without insisting upon land conversion proceedings, as the said land was converted to non- agricultural use prior to Act No.3 of 2006 came into force.
6) Pursuant to the purchase of the above mentioned plots, on 06.08.2020 the petitioners had submitted applications for building permission to the 2nd respondent with an intention to construct residential building in their lands. The 2nd respondent on 20.08.2020 has issued notice to the petitioners asking them to produce land conversion proceedings from Revenue Divisional Officer authority and layout approval.
7) The contention of the petitioners is that insisting to produce land version proceedings and layout approval is only due to political pressure put forth by persons in power, as the petitioners have voted to a person, who is not favourable to them. The petitioners had issued reply notices to the 2 nd respondent through their Advocate stating that Andhra Pradesh Agricultural Land (Conversion for non-Agricultural 4 purposes) Act, 2006 came into force on 02.01.2006, but, whereas the 2nd respondent has accorded permission to construct houses to number of house plots prior to Act came into force and even after Act No.3 of 2006 came into force and it is brought to the notice of 2 nd respondent that the petitioners also stand on the same footing as others, who are granted permissions by the 2nd respondent.
8) As the applications of the petitioners are kept pending and assailing the same, the petitioners filed W.P.No.17098 of 2020 and this Court disposed of the said writ petition by order, dated 29.09.2020 directing the 2nd respondent to pass orders on the building applications submitted by the petitioners within 10 days of receipt of order.
9) In spite of the orders of the Court, the 2nd respondent did not pass any orders and the petitioners filed Contempt Case in C.C.No.48 of 2021. After receiving notices in the contempt case, the 2nd respondent in most illegal and clandestine manner rejected the applications of the petitioners vide impugned proceedings in Lr.No.21/2021, dated 26.01.2021 stating that as per the certificate copy of the revenue authorities land in Survey No.165 of 5 Banaganapalle is an agricultural land and there is no conversion of land for non-agricultural purposes.
10) The learned counsel for the petitioners submits that no copy of the revenue authorities alleged to have been stated in the impugned rejection order stating that it is an agricultural land has been furnished to the petitioners. In fact, the petitioners have filed certificate issued by the Tahsildar, Sub Registrar and building permissions issued by the 2nd respondent himself to number of persons in Survey No.165 to prove that it is a residential area.
11) The learned counsel for the petitioners further submits that the impugned order of the 2nd respondent is so deliberate and capricious that the ground for rejection (i.e.) Survey No.165 is an agricultural land is contrary to their own record (i.e.) the number of building permissions are granted in Survey No.165 and the colony is filled with 70% of houses. The 2nd respondent under the political pressures could venture to perpetuate the illegalities by way of untenable grounds only for the purpose of defeating the petitioners' right is not only illegal, but also contemptuous as he is even circumventing the orders of the Court. The 2nd respondent is not only acting illegally, but also in most irresponsible manner 6 and sought to set aside the impugned order and to allow the writ petition.
12) Learned counsel for the petitioners relied on a decision of this High Court in K. Satyananda Patnaik and others vs. Hyderabad Urban Development Authority, rep. by its Vice-Chairman, Hyderabad and others1.
13) On the other hand, the learned Standing Counsel appearing for the 2nd respondent submits basing on the averments made in the counter-affidavit filed on behalf of the 2nd respondent that as per the records of the Gram Panchayat it reveals that the lands in Survey No.165 of Banaganapalle have not got an approval layout. The original vendor of the petitioners has not made any application for formation of layout and no approval is accorded in this regard. The land in Survey No.165 of Banaganapalle Village is still an agricultural land and as per revenue records no permission is obtained from the authority converting the agricultural land into non- agricultural purpose as per the Andhra Pradesh Agricultural Land (Conversion for non-Agricultural purposes) Act, 2006. The revenue records also reflect that the land in Survey No.165 of Banaganapalle is an agricultural land and not residential area.
1 2010(5) ALT 453 (S.B.) 7
14) The learned Standing Counsel for the 2nd respondent further submits that the essential documents for granting building permission are land conversion certificate and Town & Country Planning layout approval, etc. But the petitioners did not file land conversion certificate and layout approval along with their applications to get permission for house construction. A notice was also issued on 20.08.2020 requesting them to submit the land conversion certificate issued by the Revenue Divisional Officer and land approval plan of the Town Planning Department, but the petitioners without submitting the said documents have approached the Court.
15) Though the 2nd respondent made several averments in their counter-affidavit, in the facts and circumstances of the case and in the light of the law laid down by this Court in K. Satyananda Patnaik's case (1 supra), all those contentions are not relevant to adjudicate the writ petition.
16) The petitioners also filed rejoinder to the counter filed by the 2nd respondent. Almost all the petitioners reiterated the averments made in the affidavit filed along with the writ petition.
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17) Having heard the submissions of the respective counsel appearing on either side and upon perusal of the material available on record, it is established that the 2nd respondent had issued number of building permissions for construction of residential houses in the land situated in Survey No.165 of Banaganapalle Village, Banaganapalle Mandal, Kurnool District. The petitioners filed copies of the building permissions granted in Survey No.165 as Ex.P.1.
18) On careful perusal of the copy of the market value certificate issued by the Sub Registrar, Banaganapalle vide Lr.No.Nil/2021, dated 16.03.2021 which is filed as Ex.P.2 and land use certificate issued by the Tahsildar, Banaganapalle vide Dis.No.A/775/2017, dated 24.11.2017 which was marked as Ex.P.7, it is clear that the 2nd respondent has issued building permissions in favour of number persons to construct residential houses in the land situated in Survey No.165 of Banaganapalle, as the Survey No.165 of Banaganapallie Village & Mandal, is being shown as under residential area in the records of the revenue department.
19. Besides this, the 2nd respondent has accorded permission to construct houses to number of house plots prior to commencement of the Act No.3 of 2006 into force and as such, in the light of the law laid down by this Court, the 9 contentions of the 2nd respondent are unsustainable and untenable. Relevant K. Satyananda Patnaik's case (1 supra) at para No.17 and 18 are extracted hereunder:
17. It is lastly urged by the petitioners that insistence on clearance under the 2006 Act, even where a land ceased to be agricultural, prior to the enactment of that legislation cannot be sustained in law. In this regard, it needs to be observed that there is no indication to the effect that the enactment is retrospective in operation.
It is only from the date on which the Act came into force, that no piece of land which was earmarked for agriculture, and is shown as such in the revenue records, can be put to non-agricultural use. In case the land was already put to residential or other use, much before the said Act came into force, a permission under it cannot be insisted. This, however, is a matter, which needs to be verified by the concerned authority. If the petitioners are able to prove that the land has been put to non-agricultural use much before the Act came into force, they cannot be required to obtain the permission under that Act.
18. For the foregoing reasons, the writ petitions are disposed of, holding that,
(a) it shall be competent for the Urban Development Authorities, or the Local Authorities, as the case may be, to insist on submission of clearance/permission under the 2006 Act as a condition precedent for releasing of layouts; and
(b) the land has been put to non-agricultural use before the 2006 Act came into force, such clearance/permission shall not be insisted. 10
20) In view of the categorical finding of this Court in the above mentioned ruling, in the considered opinion of this Court, the impugned orders issued by the 2 nd respondent rejecting the petitioners' applications for building permissions vide Lr.No.21/2021, dated 26.01.2021 is unsustainable under law and liable to be set aside.
21. Accordingly, the Writ Petition is allowed with the following directions:
(i) The order of the 2nd respondent in Lr.No.21/2021, dated 26.01.2021 rejecting the applications of the petitioners for building permission is hereby set aside;
(ii) The 2nd respondent shall grant building permissions to the petitioners for their respective plots mentioned at paragraph No.3 of this order.
22. There shall be no order as to costs.
As a sequel, miscellaneous petitions pending, if any, shall stand closed.
______________________ JUSTICE BATTU DEVANAND Date: 04.08.2021 Note: Furnish copy by tomorrow.
B/o PGR 11 HON'BLE SRI JUSTICE BATTU DEVANAND WP No.8188 of 2021 Dt: 04.08.2021 PGR