Andhra Pradesh High Court - Amravati
Ananthapur Sanctioned The Lay Out Plans ... vs State Of Maharashtra And Others on 27 September, 2019
Author: M.Ganga Rao
Bench: M.Ganga Rao
HON'BLE SRI JUSTICE M.GANGA RAO
WRIT PETITION No.855 of 2019
ORDER:
The Regional Joint Director of Town and Country Planning Ananthapur sanctioned the lay out plans submitted by the petitioner's father in respect of the land extent Ac.13.74 cents situated in Survey No.70U, 90P, 91P, 93P, 93 2P of Kallur Gram Panchayat vide lay out Nos. LP No.7/2000/ATP dated 20-10-2000, LP No.8/2000/ATP dated 20-10-2000, LP No.9/2000/ATP dated 6-11-2000, LP No.10/2000/ATP dated 6-11-2000, LP No.13/2000/ATP dated 18-11-2000, LP No.14/2000/ATP dated 18-10-2000. The land owner gifted 10% of the total lay out land under the A.P. Gram Panchayat Layout Rules and executed gift deeds in respect of land 0.305 in LP No.7/2000, 0.250 in LP No.8/2000, 0.320 in LP No.9/2000, 0.126 in LP No.10/2000 0.305 in LP No.13/2000, 0.270 in LP No.14/2000. Accordingly, the owner of the land surrendered the land to the Kallur Gram Panchayat. On 10-9-2018, the petitioner through GPA M.Krishna Kanth submitted an application to the Commissioner, Kurnool Municipal Corporation, Kurnool for issue of TDR (Transferable Development Right) for 0.202 cents of land gifted to the Gram Panchayat in the sanctioned lay out for the purpose of open spaces for public utility. The said application was considered by the 3rd respondent vide proceedings ROC No.207587/2018/G1 dated 11-10-2018, whereby rejected the petitioner's application for grant of TDR or compensation in lieu of TDRs on the ground that the layouts were sanctioned in between the years 2000 and 2002 in favour of the petitioner's father. As per the directions of the 2 Regional Director of Town and Country planning Commissioner, Ananthapuram, the Commissioner of Kurnool Municipal Corporation approved the said layouts and directed the applicant to gift the open space at the rate of 10% for total extent of Ac.13.74 cents, which would come to extent of Ac.1.37.4 cents. The said open space was notified in the master plan. Section 167(1) of G.O.Ms.No.119, M.A. and U.D. Department dated 28-7-2017 reads as follows:-
"Sec. 167(1) : Concession in road widening cases:
(1) Where any land or site or premises for building is affected in the Statutory Plan/Master Plan Road or Circulation network or a road required to be widened as per Road Development Plan, such area so affected shall be surrendered free of cost to the Sanctioning Authority by the owner of land. No development permission shall be given unless this condition is complied with.
As the applicant has not fulfilled the above condition, TDR, as desired by him, shall not be granted." Questioning the order dated 11-10-2018, the present writ petition came to be filed.
Learned counsel for the petitioner would contend that the petitioner gifted land extent Ac.1.57.4 cents instead of Ac.1.37.4 cents i.e., Ac.0.20 cents excess land was surrendered to the Gram Panchayat and petitioner is entitled for TDR or compensation in lieu of TDR for Ac.0.20 cents of additional land gifted to the Gram Panchayat and as per G.O.Ms.No.198 M.A. and U.D. Department dated 28-7-2017 and as per G.O.Ms.No.67 Panchayat Raj and Rural Development Department dated 22-6-2002, the owner of the layout has to earmark only 10% of the total area and even under the Municipal Laws also only 10% has to be earmarked for public purpose. The counsel further contends that as per Rule 10 of AP 3 Municipalities layout Rules, 1970, the petitioner has to left 10% as open space of the layout irrespective of size of plots and as per Rule 10(2) of A.P. Municipalities Layout Rules, 1970 (for short, 'the Rules'), if the layout sought for falls in a Master Plan or in a Town Planning scheme and for which a draft scheme is already furnished by the Director of Town Planning or in a Sanctioned Town Planning Scheme or Master plan, if a portion of his land falls in the area earmarked in such a plan for a common public purpose in the interest of general development of that locality, the owner of such land shall transfer such percentage of the area of layout as prescribed in sub-rule (1) free of cost to the Municipality. In other cases, i.e. if the area so earmarked in the lay out under reference or more than such percentage as prescribed in sub-rule (1), he shall also transfer the entire area so proposed to be reserved in the layout and he is entitled to receive compensation in the prevailing market rate from the Municipality, for the part of his site which is in excess of the extent of land which he has to provide as per sub- rule(1). Hence, rejection of his case for grant of TDR or compensation in lieu of TDR vide impugned proceedings dated 11.10.2018, is illegal, arbitrary and he placed reliance on the decision of High Court at Hyderabad rendered in W.P.No.34412 of 2014. The petitioner is entitled for TDRs or compensation in lieu of TDR for the land gifted to the Gram Panchayat over and above 10% of open space as per Rule 10(1) of the Rules and as per sub- rule (2) of Rule 10 of the Rules, he is entitled for TDR or compensation in lieu of TDRs for the land of Ac.0.20 cents gifted to the Gram Panchayat over and above the statutory limit of 10% prescribed in sub-rule (1) of Rule 10 of the Rules. 4
Sri S.D.Goud, learned counsel appearing for the 3rd respondent, per contra, while reiterating the averments of the counter, would contend that the layouts were sanctioned and approved by the competent authorities in the years 2000 and 2002 in favour of the petitioner's father, being a land owner. As per sanctioned layouts, the father of the petitioner gifted the open space shown in the said sanctioned plan for public purpose to the Gram Panchayat. The third respondent denied the submissions of any representations dated 25-6-2005, 14-9-2008 and 4-11-2011 to the 3rd respondent-Corporation for sanction of TDR or compensation in lieu of TDRs in respect of Ac.0.20 cents of land surrendered to the Gram Panchayat as per the layouts. He would further contend that Kallur Gram Panchayat was merged in the Municipal Corporation on 08-02-2002 and connected records were handed over to the Corporation by the authorities of Kallur Gram Panchayat at the time of its merger and entire open spaces were developed for public utility. In the present land surrendered as per the open spaces a compound was constructed in a part of it with a length and width 190 x 120 feet = 22,800 square feet by the respondents and remaining site is kept as open space by making plantation and trees. But grant of TDRs or compensation in lieu of TDRs came into force on 7-4-2012 vide G.O.Ms.No.168 as on the date of gifting of the open space as per the sanctioned layout by the father of the petitioner to the Gram Panchayat and the said G.O. is not in force. Nearly after 19 years, the son of the petitioner through GPA submitted an application on 10-9-2018 for grant of TDR or compensation in lieu of TDR as per G.O.Ms.No.168 dated 7-4-2012 which has no application to the petitioner's case and 5 claim is belated one. The 3rd respondent rightly rejected the petitioner's application vide impugned proceedings dated 11-10-2018 stating that as per section 167(1) issued through G.O.Ms.No.119 dated 28-7-2017, the applicant has not fulfilled the conditions and not entitled for TDR or compensation in lieu of TDR. There is no irregularity or illegality in issuing the impugned order and writ petition is liable to be dismissed.
In the facts and circumstances of the case and submissions of the learned counsel and on perusal of the record, this court found that the petitioner's father submitted layout plans to the Regional Director of Town and Country Planning, Anantapuram, in respect of the land extent Ac.13-74 cents situated in Kallur Gram Panchayat in various survey Numbers. As per the provisions of law existing as on that date, as per the sanctioned layout, the petitioner's father executed gift deed in respect of the open space left out in the sanctioned plan to the Kallur Gram Panchayat and the same was accepted by the Kallur Gram Panchayat. After merger of Gram Panchayat in the Municipal corporation, the same was approved by the 3rd respondent corporation. The petitioner's father was granted as many as six layouts in Survey Nos.70U, 90P, 91P, 93P and 93 2P of Kallur Gram Panchayat. As per the layout open space left for public utility as accepted by the Regional Director of Town and Country Planning as shown in the layouts was gifted to Kallur Gram Panchayat and none of the authorities had demanded the petitioner to surrender by way of gift deed over and above the 10 % open spaces as per sub-rule (2) of Rule 10 of the Rules. Sub-rules (1) and (2) of Rule 10 of the Rules extracted below:
6
"10.(1) The area of land required to be set apart under clause
(b) of sub-section (2) of Section184 shall not be less than 5% of the gross area covered with not more than 8 plots per gross hectare over and above this for the increase of every two plots per gross hectare, the open spaces to be provided shall increase by one more percent. (Such open space shall, however, be limited to 10% a maximum, irrespective of the size of plots when minimum, extent and width safely as per sub-rule (1) of Rule 9).
(2) In case the area, for which a layout is sought for, falls in a Master Plan or in a Town Planning Scheme and for which a draft scheme is already furnished by the Director of Town Planning or in a sanctioned Town Planning Scheme or Master plan, if a portion of his land falls in the area earmarked in such plan for a common public purpose in the interest of general development of that locality, the owner of such land shall transfer such percentage of the area of layout as prescribed in sub-rule (1) free of cost to the Municipality. In other cases i.e., if the area so earmarked in the layout under reference are more than such percentage as prescribed in sub-
rule (1), he shall also transfer the entire area so proposed to be reserved in the layout and he is entitled to receive compensation at the prevailing market rate from the Municipality, for the part of his site which is in excess of the extent of land which he has to provide as per sub-rule(1)." Even as per sub-rule (2) of Rule 10 of the Rules, the owner of the land who was asked to surrender over and above 10% of open spaces as per the request of the authorities to provide open spaces as per Master Plan or Town Planning scheme a draft scheme is already furnished by the Director of Town and Country planning or any sanction Town Planning Scheme or master plan. If the owner of the land or layout if he was asked to surrender excess land over and above the minimum percentage i.e., 10% of land is meant for open space and public utilities to meet the requirement of master plan or sanction town planning scheme. If the petitioner surrendered or gifted as per the requirement of the authorities, 7 then only he is entitled for compensation at the prevailing market rate from the municipality for the part of his site, which is in excess of the extent of land, which he has to provide as per sub- rule (1). But in the present case, the petitioner's father shown the open space in the layout as per the Rules and sub-rules and submitted layout plans for sanction of Regional Director of Town and Country Planning, Ananthapuram. Accordingly, the lay out was approved and sanctioned in favour of the petitioner's father in the years 2000 and 2002.
The petitioner himself has stated in his affidavit that Ac.0.202 cents of excess land was left as open spaces in six layouts got sanctioned by the petitioner. In the absence of any evidence to show that the petitioner's father was asked for surrender of the land for open space over and above maximum 10% of open space as per Rule 10(1) of the Rules. The petitioner is entitled for compensation for the excess open space left in the sanctioned plan as per Rule 10(2) of the Rules. On the requisition by the authorities to meet the open spaces public utilities shown in the master plan or town planning. Hence, the petitioner is the son whose father got sanctioned layouts in the years 2000 and 2002 and submitted application for grant of TDR or compensation in lieu of TDR for the alleged surrender of open spaces by way of gift deeds to the Gram Panchayat is not entitled for any TDR or compensation in lieu of TDR as per A.P. Buildings Rules, 2012 issued in G.O Ms.No.168 dated 7-4-2012 and as per the provisions of Section 167(1) of G.O.Ms.No.119 M.A. & U.D. Department dated 28-7-2017, as no part of land or site or premises for building is affected in the Sanctioned Plan/Master Plan road or circulation 8 network or a road required to be widened as per Road Development Plan, such area so affected shall be surrendered free of costs to the Sanctioning Authority by the owner of land and no development permission shall be given unless the said condition is complied with. Hence, the petitioner is not entitled for any TDR or compensation as his case does not fall within the provisions of Section 167(1) of the Act.
The counsel for the petitioner placed his reliance on the decision rendered by the High Court at Hyderabad in W.P.No.34412 of 2014 dated 08.12.2014, but the facts in the case are totally different from the facts of this case. In that case, it is held that the petitioner was given building permission on the ground that 300 metres master plan road is passing through the petitioner property, on mere passing of the master plan road, the effected road property does not automatically become the property of the Hyderabad Metropolitan Development Authority without acquiring the land as per law.
Hence, the decision has no application to the present case. The petitioner counsel also relied on the judgments in Raju S. Jethmalani and others Vs. State of Maharashtra and others1 and G.Usha Rani Vs. State of Andhra Pradesh, rep. by its Principal Secretary, M.A. & U.D. Dept., and others2, wherein also property was effected in master plan. Hence, decisions do not support the petitioner's case.
For the above reasons, the petitioner failed to show any legal right for grant of TDR or compensation in lieu of TDR. Further, the 1 (2005) 11 SCC 222 2 2015(2) ALT 741 9 impugned order does not suffer from any irregularity or illegality, which warrants interference of this Court.
Accordingly, Writ Petition is dismissed. There shall be no order as to costs. Consequently, Miscellaneous Petitions, if any, pending in this Writ Petition shall stand closed.
_________________ M.GANGA RAO,J Date: 27.09.2019 Ivd/CKR 10 HON'BLE SRI JUSTICE M.GANGA RAO WRIT PETITION No.855 of 2019 Date: 27.09.2019 Ivd