IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI
Writ Petition No. 18104 of 2020
Decided On: 22.10.2020
Perala Jyotsna and Ors.
Vs.
The State of Andhra Pradesh and Ors.
Hon'ble Judges/Coram:
M. Satyanarayana Murthy, J.
Counsels:
For Appellant/Petitioner/Plaintiff: Kavitha Gottipati
For Respondents/Defendant: Government Pleader
ORDER
M. Satyanarayana Murthy, J.1. This writ petition is filed under Article 226 of the Constitution of India questioning the action of the respondents in proposing to convert open plots which were earmarked for school, temple, community hall and park into house sites under scheme of "Navaratnalu-Pedalandariki Illu" in Sy. No. 67 of Sudivaripalem Village, Inkollu Mandal, Prakasam District and to declare the same as illegal, arbitrary; consequently direct the respondents not to assign the open plots earmarked for school, temple, community hall and park etc.
2. The petitioners are the residents of Sudivaripalem Village, Inkollu Mandal, Prakasam District. There are number of poor people, who are below poverty line, residing in the said village without any shelter, they made representations requesting the Government for allotment of house sites. During the year 1999 and subsequent years, in a phased manner, house site pattas were granted to the poor people in the village in an extent of 8.00 acres in Sy. No. 67 of Sudivaripalem Village, hamlet of Nagandla Village, Inkollu Mandal at the rate of 0.03 cents to each Pattadar assigning house sites. In the said allotment, 183 persons including the petitioners were allotted site by issuing D-Form pattas and became beneficiaries. To allot house site pattas in Sy. No. 67, the Government has divided Ac. 8.00 of land into 0.03 cents plot each and assigned to 183 beneficiaries. A layout was sanctioned by the authorities reserving site for roads as well as school, temple, community hall and park etc. Out of the said land, excluding the house site pattas given to the poor people, 12 plots at 3 different places earmarked/reserved for construction of school, temple, community hall and park etc. In the plots reserved for public purpose, no school, community hall were constructed and no park was created in the open plots, but the State proposing to assign those plots, earmarked for public purpose, to the landless poor under the scheme "Navaratnalu Pedalandariki Illu", thereupon the petitioners made a representation dated 26.08.2020 not assign the land earmarked for public purpose, bringing to the notice of the respondents that the proposed plots were earmarked for school and park etc.
3. It is specifically contended that the open space left as per statutory requirement has to be utilised for park as well as for public purposes. After approval of layout, specific public places will vest on the panchayat and it is under obligation to utilise the same for the purpose, for which they were reserved. Instead of development of park, temple etc. for the benefit of the villagers, the respondents are trying to assign the land to the landless poor. The action of the respondents in trying to assign the public place will deviate the very purpose of reservation of those plots, therefore, such act of the respondents is illegal, arbitrary and contrary to the provisions of the Andhra Pradesh Panchayat Raj Act, 1994 (for short "the Act") and the Andhra Pradesh Town Planning Act, 1920, requested to issue a direction as claimed.
4. The respondents did not file any counter, but learned Assistant Government Pleader for Revenue placed on record written instructions Rc. No. DT/537/2020 dated 07.10.2020 along with layout plan showing the proposed common plots for assignment to the landless poor under the Scheme "Navaratnalu-Pedalandariki Illu", requested to dispose of the writ petition based on the written instructions.
5. In view of the request made by learned Assistant Government Pleader for Revenue, this Court has no other alternative except to dispose of the same taking into consideration, the written instructions placed on record by learned Assistant Government Pleader for Revenue.
6. In the written instructions it is stated that an extent of Ac. 4.19 cents in Sy. No. 67/2A of Nagandla Revenue Village was acquired in the year, 1996. A layout was prepared with 106 plots. 8 plots were earmarked for communal purpose and 6 plots were earmarked for future needs. House site pattas were granted to 61 beneficiaries. Another extent of Ac. 4.14 cents was also acquired in Sy. No. 67/1B and 3 of Nagandla Village during the same year. A layout was prepared with 103 plots. House site pattas were granted to 77 beneficiaries, and 8 plots were reserved for communal purpose and 6 plots were allotted for future needs. Later, 61 persons have applied for grant of house site pattas and 45 persons were identified as eligible for grant of house site pattas. The above mentioned two layouts were combined and found that 16 plots earmarked for communal purpose and another 55 plots are vacant in the layout. House site pattas were granted to the 45 beneficiaries in the year, 2013. 12 beneficiaries of Sudivaripalem H/o Nagandla village were selected for grant of house site pattas under "Navaratnalu-Pedalandariki Illu" programme. There is no suitable Government land in the village. As the number of beneficiaries is very small in number, the requisition of private land is not desirable, the government proposed to grant Ac. 0.015 cents each to 12 beneficiaries by taking 8 common plots from the above layout. After allotting these 8 plots to the beneficiaries selected under "Navaratnalu" programme, still 8 communal plots and another 10 plots reserved for future needs are vacant in the layout. The Tahsildar, Inkollu on 19.08.2020 proposed 8 communal plots for grant of house site pattas under "Navaratnalu" programme and that the petitioners have not filed any representation before the Tahsildar regarding the present issue, requested to dismiss the writ petition.
7. In view of the written instructions placed on record by the learned Assistant Government Pleader for Revenue, there is no dispute regarding division of land in Sy. No. 67/2A of Nagandla Revenue Village. A layout was prepared with 106 plots, out of which, 8 plots were earmarked for communal purpose and 6 plots were earmarked for future needs, and the land in Sy. No. 67/1B and 3 of Nagandla Village was also divided into plots, and a layout was prepared with 103 plots, out of which, 8 plots were earmarked for communal purpose and 6 plots were allotted for future needs. On the application made by several persons being landless poor, the State proposed to assign plot Nos. 4, 5, 16, 17, 54, 55, 66 and 67 in Sy. No. 67/1A and 3 C, which were reserved for public purpose. Thus, the proposed allotment of plot Nos. 4, 5, 16, 17, 54, 55, 66 and 67 in Sy. No. 67/1A and 3 C under the scheme "Navaratnalu-Pedalandariki Illu" is not in quarrel.
8. Smt. Kavitha Gottipati, learned counsel for the petitioners, contended that the plots reserved for public purpose like construction of community hall, temple etc., cannot be assigned since they are meant for better living of beneficiaries of the layout. There was, absolutely, no school, community hall etc., in the vicinity, still the Gram Panchayat did not construct the school, temple for the benefit of occupiers of various plots in Sy. No. 67 of Sudivaripalem village, Inkollu Mandal, Prakasam District and such plots cannot be allotted to any beneficiaries by granting D-form pattas and it is contrary to the provisions of the Andhra Pradesh Panchayat Raj Act, 1994 and the Andhra Pradesh Town Planning Act, 1920, requested to issue a direction to the respondents not to assign the plots, which were reserved for public purpose.
9. Learned Assistant Government Pleader for Revenue fairly submitted that the respondents proposed to assign plot Nos. 4, 5, 16, 17, 54, 55, 66 and 67 in Sy. No. 67/1A and 3C to landless poor under the scheme "Navaratnalu-Pedalandariki Illu" as no other land is available within the village for allotment of house sites to the landless poor. Respondents identified plot Nos. 4, 5, 16, 17, 54, 55, 66 and 67 in Sy. No. 67/1A and 3C of Sudivaripalem village for the said purpose and the same was shown in the plan annexed to the written instructions. It is further contended that based on executive necessity, conversion can be permitted and allotment of land to the landless poor is not in violation of any rules or provisions in any enactment, requested to dismiss the writ petition.
10. Considering rival contentions, perusing the material available on record, the point that arises for consideration is:
Whether the plots reserved for public purpose i.e. construction of school, temple, community hall and development of park be converted into plots for allotment to the landless poor in view of the provisions of the Andhra Pradesh Panchayat Raj Act, 1994 and the rules framed thereunder, and the Andhra Pradesh Town Planning Act, 1920?
POINT:
11. It is an undisputed fact that the State has acquired land in Sy. No. 67/2A and Sy. No. 67/1B and 3 of Nagandla Village in an extent of Ac. 4.19 cents and Ac. 4.14 cents respectively. Initially, the land in Sy. No. 67/2 A of Nagandla Revenue Village was acquired in 1996 and a layout consisting of 106 plots was prepared, out of which, 8 plots were earmarked for public purpose and 6 plots were earmarked for future needs, granted pattas to 61 beneficiaries. Later, an extent of Ac. 4.14 cents in Sy. No. 67/1B and 3 of Nagandla village and a layout was prepared consisting of 103 plots, out of which, 8 plots were earmarked for public purpose and 6 plots were earmarked for future needs, and granted pattas to 77 beneficiaries. Thus, the undisputed fact is that in Sy. No. 67/2A of Nagandla Revenue Village, 8 plots were earmarked for public purpose and 6 plots were earmarked for future needs and that in Sy. No. 67/1B and 3 of Nagandla Revenue Village, 8 plots were earmarked for public purpose and 6 plots were earmarked for future needs.
12. Admittedly, the respondents proposed to allot those plots to the landless poor, which were reserved for public purpose as shown in the plan annexed to the written instructions submitted to this Court. Sudivaripalem Village, hamlet of Nagandla Village is a village and it is governed by the Act and the layout was prepared in terms of the Andhra Pradesh Town Planning Act, 1920. Rule 13 of the Andhra Pradesh Land Development (Layout and Sub-division) Rules, 2017 is the relevant rule, which reads as under:
"13. Reservation and Allotment of Land:
(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.
(3) The areas reserved for utilities shall be handed over to the Local Authority free of cost through a registered gift deed. This area shall be utilized only for community facilities such as Electrical Substation, Government school, Government Dispensary, Ward Office, Public Utility Office, Public Library, Water Reservoir, Rain water harvesting structures, Police Station/outpost, Public Parking, Fire Station, Bus Station, Septic Tank, Solid Waste Collection point etc.
(4) The area reserved for Amenities shall be used only for the purposes earmarked in the Final Layout Plan [FLP] by the Competent Authority for educational, commercial facilities etc. The Owner/Developer may also sell or lease this area but only for the purposes earmarked in the Final Layout Plan [FLP].
(5) The stamp duty is exempted for handing over the areas reserved for public purpose and utilities to the concerned local authorities through Registered Gift/settlement deed.
(6) Every open space shall have independent means of access.
(7) In case, the area for which the Land/Layout Development sought for falls in sanctioned Master Plan or Zonal Development Plan or Draft Plan, if a portion of this land falls in the area earmarked/reserved in such plans for a common public purpose in the interest of general development of the 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 Local Authority.
(8) In other cases i.e., if the area so earmarked in the Land/Layout Development under reference for roads and public open space are more than such percentage as prescribed in sub-rule (1) he shall Page 36 also transfer the entire area so proposed to be reserved in the layout and he is entitled to receive Transferable Development Rights (TDR) from the Local Authority for the part of his site which is in excess of the extent of lands which he was to provide as per sub-rule (1).
(9) The areas allotted for Affordable Housing if any, shall be utilized only for the specific purpose and the applicant may sell or dispose of these plots only for the said purpose and no amalgamation or alteration of these plots shall be considered.
(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.
(11) In the case of Commercial/Industrial Land Development having an area of above 3 Hectares, an extent of 5% of the total area shall be reserved for general parking space; and if such parking area exceeds 2000 sq. m. part of it could be utilized for the construction of buildings for banks, canteens, welfare centres and such other common purposes considered necessary for the industrial user, as approved by the Authority."
13. In compliance of Rule 13 of the Andhra Pradesh Land Development (Layout and Sub-division) Rules, 2017, plot Nos. 4, 5, 16, 17, 54, 55, 66 and 67 in Sy. No. 67/1A and 3C of Sudivaripalem village reserved for public purpose i.e. construction of school, temple, community hall and development of park. The reservation of such land under Rule 13 of the said Rules is mandatory and the same cannot be utilised other than the purpose, for which it was reserved.
14. Chapter II of the Act deals with powers, functions and property of Gram Panchayats. Section 46 of the Act reads thus:
"46. Power of Gram Panchayat to provide for certain other matters:-Subject to the provisions of this Act and the rules made thereunder, a Gram Panchayat may also make such provision as it thinks fit for carrying out the requirements of the village in respect of the following matters, namely:-
(i) the construction and maintenance of dharmashalas, sarais and rest houses for travellers;
(ii) the planting and preservation of groves and trees on the sides of roads and other public places;
(iii) the promotion and development of pre-primary education, elementary education, social and health education, cottage industries and trade;
(iv) the establishment and maintenance of dispensaries and the payment of subsidies to rural medical practitioners;
(v) the establishment and maintenance of wireless receiving sets, play grounds, akhadas, clubs and other centres for recreation and physical culture;
(vi) the laying and maintenance of parks;
(vii) the establishment and maintenance of libraries and reading rooms;
(viii) the provision of relief to the crippled, the destitute and the sick;
(ix) the establishment and maintenance of nurseries and stores of improved seeds and agricultural implements of the production and distribution of improved seeds, pesticides and insecticides and the holding of agricultural shows including cattle shows;
(x) the propagation of improved methods of cultivation in the village including laying out of demonstration plots with a view to increasing production;
(xi) the encouragement of co-operative management of lands in the village and the organisation of joint co-operative farming; and the promotion of co-operatives for the manufacture of bricks, tiles, hinges, doors, windows, rafters or other building materials as provided in the village housing project schemes sponsored by the Central Government;
(xii) the establishment and maintenance of ware-houses and granaries;
(xiii) the establishment and maintenance of cattle sheds;
(xiv) the extension of village sites;
(xv) the improvement of cattle including purchase and maintenance of stud bulls and the provision of veterinary relief;
(xvi) the control of fairs, jataras and festivals;
(xvii) the organisation of voluntary labour for community development works in the village;
(xviii) the establishment and maintenance of maternity and child welfare centres;
(xix) the organisation of watch and ward;
(xx) the provision of relief against famine or other calamities;
(xxi) the destruction of stray and owner-less dogs;
(xxii) the preparation of statistics of unemployment;
(xxiii) the opening and maintenance of public markets;
(xxiv) the opening and maintenance of public slaughter houses;
(xxv) the implementation of land reform measures in the village including consolidation of holdings and soil conservations;
(xxvi) the setting up of organisation to promote good will and social harmony between different communities, the removal or untouchability, the provision of house sites for harijans, the eradication of corruption, the prohibition of or temperance in the consumption of intoxicating drinks or drugs which are injurious to health and the discouragement of gambling and litigation;
(xxvii) other measures of public utility calculated to promote the safety, health, convenience, comfort or moral, social and material well-being of the residents of the village."
15. In view of Section 46 of the Act, it is the duty of the Gram Panchayat to provide certain amenities to the public and maintain them, such as construction of schools (clause iii), laying and maintenance of parks (clause vi) and other measures of public utility calculated to promote the safety, health, convenience, comfort or moral etc. (clause xxvii).
16. Section 58 of the Panchayat Raj Act is a special provision to divest the tanks, roads, etc, specified in Sections 53, 54, 55 and 57, including the porambokes namely, grazing grounds, thrashing floors, burning and burial grounds, cattle stands, cart tracks and topes, which are at the disposal of the Government and are not required by them for any specific purpose shall vest in the Gram Panchayat subject to such restrictions and control as may be prescribed. Sub-section (2) of Section 58 says that, the Government may, at any time by notification in the Andhra Pradesh Gazette, direct that any porambokes referred to in sub-section (1) shall cease to vest in the Gram Panchayat if it is required by them for any specific purpose and thereupon such porambokes shall vest in the Government. Therefore, a gazette notification is necessary to divest the property on the government that vested on the gram panchayat. In the absence of any notification issued by the Government divesting Gram Panchayats of any poramboke lands, there cannot be any use of panchayat land for any other purpose and the same cannot be assigned to the landless poor for house sites or otherwise. Thus, unless there is a notification by the Government divesting gram panchayat and vesting on Government any property referred above, there cannot be any use of panchayat land for any other purpose. (vide "Rythu Seva Sangam, Yenamadurru v. Bhimavaram Municipality 2012 (5) ALT 631" and "Banne Gandhi and others v. District Collector 2007 (2) ALT 550").
17. Therefore, the Gram Panchayat alone is having control over the land that vested on it after approval of layout by the Director of Town Planning. When once the property is vested on the Gram Panchayat, unless the same is denotified for any other purpose, the same cannot vest on the Government to deal with the same. However, the State has issued G.O.Ms. No. 558 Panchayat Raj and Rural Development (Pts. II) Department dated 02.03.2020, de-notifying certain Poramboke lands in the State, which are vested with Gram Panchayats under sub-section 1 of section 58 of the said Act, shall cease to vest in the Gram Panchayat and they shall vest with the Government for providing house sites to the homeless poor under the flagship programme "Navaratnalu-Pedalandariki Illu". But the said G.O.Ms. No. 558 dated 02.03.2020 cannot be applied to the present facts of the case for the simple reason that the plots proposed to be allotted to the landless poor are vested on the Gram Panchayat for construction of community hall, temple, park etc. When once they are reserved for public purpose, they cannot be converted into house sites and assign the same to the public under any scheme in view of the law laid down by the Apex Court in "Jagpal Singh and others vs. State of Punjab and others (2011) 11 Supreme Court Cases 396", wherein the Apex Court held as follows:
"Para 3: The protection of common rights of the villagers were so zealously protected that some legislation expressly mentioned that even the vesting of the property with the State did not mean that the common rights of villagers were lost by such vesting. Thus, in Chigurupati Venkata Subbayya v. Paleduga Anjayya (1972) 1 SCC 521) SCC Page 529 the Court observed in Para 23 as follows:
"23. It is true that the suit lands in view of Section 3 of the Estates Abolition Act did vest in the Government. That by itself does not mean that the rights of the community over it were taken away. Our attention has not been invited to any provision of law under which the rights of community over those lands can be said to have been taken away. The rights of the community over the suit lands were not created by the principal or any other landholder. Hence those rights cannot be said to have been abrogated by Section 3(c) of the Estates Abolition Act."
18. In view of the principle laid down in the above judgment, communal land, though available, cannot be alienated to any third party defeating the common rights of the villagers. The contention of the respondents is that it is a communal land, but as seen from the provisions of the Andhra Pradesh Panchayat Raj Act, 1994, the Andhra Pradesh Town Planning Act, 1920 and the A.P. Land Development (Layout and Sub-division) Rules, 2017, earmarking of various plots referred above is for public purpose, but not for communal purpose. Even assuming for a moment, that earmarking or reservation of plots is for communal purpose, still, it cannot be transferred or alienated to third persons since it vested on the Panchayat.
19. At this stage it is condign to advert to Rule 3 of the A.P./T.S. Gram Panchayat Land Development (Layout and Building) Rules, 2002 deals with application for layout permission and Rule 4 specifies minimum requirement for approval of layout, it runs as follows:
"4. Minimum requirement for approval of Layout.-(1) The Layout proposal shall conform to the requirements:
(a) shall have approach through an existing road, the width of such shall not be less than 10 meters (in case of land-locked plots, the owner has to ensure the approach road through neighbouring lands accordingly;
(b) minimum width of proposed roads in the layout shall be 10 meters for residential and 12 meters for all nonresidential layouts. Notwithstanding the above minimum width, the Executive Authority may insist upon larger road widths depending upon local conditions or importance of any particular road etc., as appended in Annexure-C. The width of the roads in the layouts General Town Planning Scheme or the Indicative Land Use Plan or Master Plan, if any in force;
(c) minimum open space set apart in the proposed layout for playground/park/educational institution or for any other public purpose shall be at the rate of 10% of the total site area;
(d) the minimum plot size for nonresidential layouts shall be 300 Sq. Meters except in case of Commercial or Mercantile buildings for which the minimum plot size shall be 18 Square Meters.
(e) the layout proposals shall comply with the restrictions mentioned in Rule 5 of these rules.
(f) the applicant should provide a service road of minimum 10 meters width for the layout if the land is abutting to National Highway having less than 600 meters width."
20. As per clause (c) of Rule 4 minimum open space be set apart in the proposed layout for playground/park/educational institution or for any other public purpose at the rate of 10% of the total area of site, which comes to 3840 square yards approximately, such reservation of plots is in compliance of statutory requirement.
21. Rule 9 of the said rules deals with deviations during construction/undertaking of layout works. As per Rule 9, if during the execution of any layout, any deviation is made from the sanctioned plan the owner shall obtain revised sanction as per the procedure and rules. In the present facts of the case, though the plots reserved for public purpose, no such revised sanction was obtained under the Rules strictly adhering to Rule 9 of the said Rules.
22. The owner who has been given sanction shall be wholly and solely responsible for the quality of workmanship of layout development works, and for ensuring safety during the construction/development works, etc. as per Rule 10 of the Rules.
23. Therefore, the plots reserved for public purpose shall vest on the Gram Panchayat in view of clause (7) Rule 11 of the A.P./T.S. Gram Panchayat Land Development (Layout and Building) Rules, 2002. According to clause (7) Rule 11, all the roads and open spaces such as parks and playgrounds earmarked in accordance with these rules in a layout, which is approved by the Gram Panchayat shall automatically stand transferred free of cost, and vest with the gram panchayat free from all encumbrances. After such vesting, the gram panchayat shall maintain all such open spaces for the purpose for which they have been earmarked.
24. Thus, the open plots are deemed to be vested on the Gram Panchayat as per clause (7) of Rule 11 of the said Rules, and Gram Panchayat is not competent to divest the land and vest on Government for the reason that Section 58 of the Panchayat Raj Act has no application. Therefore, the Gram Panchayat is the custodian of the property having vested on it in view of clause (7) of Rule 11 of the Rules.
25. The Division Bench of the High Court of Andhra Pradesh at Hyderabad in "Sri Balaji Park Residents Welfare Association v. Vice-Chairman, Visakhapatnam Urban Development Authority 2001 (6) ALD 325" dealt with power of the authority to convert the open plots reserved for public purpose/communal purpose for any other purpose with reference to different enactment; ultimately concluded that the plots/land reserved for public purpose like construction of school, community hall, park etc. cannot be converted to any other purpose and shall not allot the same to any other person.
26. An identical issue came up before the Apex Court in "Machavarapu Srinivasa Rao v. The Vijayawada, Guntur, Tenali, Mangalagiri Urban Development Authority (2011) 12 SCC 154". In the said judgment, the Apex Court is of the view that in the absence of change of land use which could have been sanctioned only by the State Government, Respondent No. 1 therein had no jurisdiction to grant permission to Respondent No. 3 therein to construct temple at the site. Respondent No. 1 was very much alive to this legal position and this is the reason why its Vice Chairman had written letter dated 15.6.2010 to the Principal Secretary to the Government for change of land use by stating that a mistake had been committed at the time of preparation of Zonal Development Plan. But, the Apex Court did not accept the contention and concluded that when the land is reserved for recreational use and that too by ignoring that the same had not been allotted to Respondent No. 3 by any public authority, for construction of temple other than the purpose for which it was reserved.
27. In the said judgment, the Apex Court considered the earlier judgment in "Bangalore Medical Trust v. B.S. Muddappa (1991) 4 SCC 54", wherein the Court highlighted the purpose of Public Part and held that Public park as a place reserved for beauty and recreation was developed in 19th and 20th century and is associated with growth of the concept of equality and recognition of importance of common man. Earlier it was a prerogative of the aristocracy and the affluent either as a result of royal grant or as a place reserved for private pleasure. 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. A private nursing home on the other hand is essentially a commercial venture, a profit oriented industry. Service may be its motto but earning is the objective. Its utility may not be undermined but a park is a necessity not a mere amenity. A private nursing home cannot be a substitute for a public park. No. town planner would prepare a blueprint without reserving space for it. Emphasis on open air and greenery has multiplied and the city or town planning or development Acts of different States require even private house owners to leave open space in front and back for lawn and fresh air. In 1984 the B.D. Act itself provided for reservation of not less than 15 per cent of the total area of the layout in a development scheme for public parks and playgrounds the sale and disposition of which is prohibited under Section 38A of the Act. Absence of open space and public park, in present day when urbanisation is on increase, rural exodus is on large scale and congested areas are coming up rapidly, may give rise to health hazard. May be that it may be taken care of by a nursing home. But it is axiomatic that prevention is better than cure. What is lost by removal of a park cannot be gained by establishment of a nursing home. To say, therefore, that by conversion of a site reserved for low lying park into a private nursing home social welfare was being promoted was being oblivious of true character of the two and their utility.
28. In "M.C. Mehta v. Union of India (UOI) (2001) 4 SCC 577" the Apex Court while dealing with the amendment of master plan held as follows:
"While it is true that this Court has directed user of land left with the owner to be developed in accordance with the user permitted under the Master Plan but the whole aim, object and spirit of the order was to meet the community need and it is in this context also that Mr. Gopal Subramaniam drew our attention to the Appendix to the Zonal Development Plan pertaining to area "G". We are however unable to accede to such a submission since time has not come as yet in any event to assess the situation in its entirety. The Zonal Development Plans produced before the Court has not been finalised as yet since it is presently in the draft stage and as such no reliance can be placed by this Court on the data and the materials available thereon. A proposal cannot be said to be a final declaration of the community need. We are thus unable to record our concurrence therewith for the reasons noticed above."
29. In view of the law laid down by the Apex Court in "M.C. Mehta v. Union of India (UOI)" (referred supra), it is the duty of the owner of the layout to maintain the land left for community needs.
30. Reserving any site for any street, open space, park, school etc. in a layout plan is normally a public purpose as it is inherent in such reservation that it shall be used by the public in general. The effect of such reservation is that the owner ceases to be a legal owner of the land in dispute and he holds the land for the benefit of the society or the public in general. It may result in creating an obligation in nature of trust and may preclude the owner from transferring or selling his interest in it. It may be true that the interest which is left in the owner is a residuary interest which may be nothing more than a right to hold this land in trust for the specific purpose specified by the coloniser in the sanctioned layout plan. But the question is, does it entitle the respondents herein to claim that the land so specified should be transferred to third parties by assignment at free of cost. That is not made out from any provision in the Act or on any principle of law. The Gram Panchayat by virtue of the land specified as open space may get a right as a custodian of public interest to manage it in the interest of the society in general. But the right to manage as a local body is not the same thing as to claim transfer of the property to itself. The effect of transfer of the property is that the transferor ceases to be owner of it and the ownership stands transferred to the person in whose favour it is transferred.
31. The Apex Court makes it clear that reserving any site for any street, open space, park, school etc. in a layout plan is normally a public purpose as it is inherent in such reservation that it shall be used by the public in general. The effect of such reservation is that the owner ceases to be a legal owner of the land in question and he holds the land for the benefit of the society or the public in general. (Vide: "Pt. Chet Ram Vashist (dead) by L.Rs. v. Municipal Corporation of Delhi (1995) 1 SCC 47")
32. In view of the judgment of the Apex Court, the State Government cannot have any jurisdiction to alter the character of the land reserved for public purpose.
33. In "Dr. G.N. Khajuria v. Delhi Development Authority (1995) 5 SCC 762" the Apex Court held as follows:
"We, therefore, hold that the land which was allotted to respondent No. 2 was part of a park. We further hold that it was not open to the DDA to carve out any space meant for park for a nursery school. We are of the considered view that the allotment in favour of respondent No. 2 was misuse of power, for reasons which need not be adverted. It is, therefore, a fit case, according to us, where the allotment in favour of respondent No. 2 should be cancelled and we order accordingly. The fact that respondent No. 2 has put up some structure stated to be permanent by his counsel is not relevant, as the same has been one on a plot of land allotted to it in contravention of law. As to the submission that dislocation from the present site would cause difficulty to the tiny tots, we would observe that the same has been advanced only to get sympathy from the Court inasmuch as children, for whom the nursery school is meant, would travel to any other nearby place where such a school would be set up either by respondent No. 2 or by any other body."
34. The Apex Court highlighted the purpose of providing lung space, its importance and use in "Municipal Corporation, Ludhiana v. Balinder Bachan Singh (Dead) by Lrs (2004) 5 SCC 182" and held that for every locality green spaces and green belts have to be provided to provide lung space to the residents of the locality. A provision for green park was made by the Municipal Corporation keeping in view the minimum requirement to provide open/green space to the residents of the locality.
35. The Apex Court in its latter judgment in "Sri Devi Nagar Residences Welfare Association v. Subbathal 2007 (3) LW 259" further clarified as to how the open space serves, necessity to preserve and protect the same while observing that the open space in a residential area or in busy townships is treated as lung space of the area. It provides fresh air and refreshment to the persons in the neighbourhood. Its presence ameliorates the hazards of pollution and it has to be preserved and protected for the sustenance of the men around. It is for the health and well-being of the inhabitants of the residential area. The same cannot be bartered for any other purpose. Apart from that, in view of the conditions imposed by the fifth respondent therein, by his proceedings dated 17.7.1974 addressed to the Executive Officer, Ganapathy Town Panchayat, which remain unchallenged by the owners of the layout land for all these years, the fourth respondent therein is estopped from using the area set apart as open space, for any other purpose.
36. The Apex Court in "Pillayarpatti Karpaga Vinayagar Koil Nagarathar Trust thru Ramanathan v. Karpaga Nagar Nala Urimai Sangam Rep. by Secretary AIR 2010 SC 3266" held as follows:
The layout to an extent of 76.12 acres of land was prepared and approved with 910 plots by the town panchayat as per the Town Panchayat Building Rules. Later, Tallakulam Panchayat was merged with Madurai City Municipal Corporation during the year 1974 and the laws applicable to Madurai City Municipal Corporation were made applicable to Tallakulam Panchayat. Hence the conversion application for revalidation of the original plan was submitted to the Corporation. In that plan, 40 plots were shown as reserved for school. Thereafter, in the year 1979-80, the local planning authority of Corporation prepared a detailed development plan including the lands covered in the said layout. In the said plan, the area relating to 40 plots was demarcated and shown as residential area. As there was difference in the classification in respect of 1975 plan and 1980 plan, the local planning authority cancelled the 1975 plan with a direction that the 1980 plan alone would be valid.
37. Following the principles laid down in the above judgments, the Madras High Court in "K. Durairaj v. The Secretary (W.P. No. 34395 of 2007)" reiterated the principle that the land reserved for public purpose in the layout cannot be converted for any other purpose since such earmarking is for the benefit of the public.
38. In "HGN Samity v. Chief Secretary 2000 (1) CHN 28", a Division Bench of the Calcutta High Court stated the law thus:
"How the State Government had allotted a portion of the park in deviation of its policy decision in the name of building of Community Hall is a matter of great surprise that there are several statutes governing the field is not in dispute. A lay-out plan has to be made under the provision of the West Bengal Town and Country (Planning and Development) Act, 1979. The Calcutta Metropolitan Development Authority has issued handbook laying down the procedure and guidelines for environmental clearance. Although the same is meant for certain purposes, viz., industrial projects, the same is a pointer to show that the State had been also eager to maintain the greenery and the ecological balance. Therefore, we fail to understand as to how the State could allot the lands in question within a park which is contrary to the representation made by it to the residents particularly in view of the fact that excess premiums had been charged for those who had opted for settlement of land near the park or green verges.
It is also surprising as to how the Bidhan Nagar Municipality also sanctioned the building plan within a park. The said action, in our opinion, was not commensurate with the professed policy decision of the State and the Municipality. The aspect of the matter has recently been considered in "M.I. Builders Pvt. Ltd. v. Radhey Shyam Sahu [1999] 3 SCR 1066", wherein it has been held that the Municipality is a Public Trustee in respect of parks".
39. In view of the law declared in catena of perspective pronouncements (referred above) the site reserved for public purpose in the layout cannot be used for any other purpose and it is for the benefit of public i.e. for construction of school, temple, community hall and park etc.
40. In the present facts of the case, layout owner is the Government, consequent upon the approval of layout plan and after allotting plots to various beneficiaries granting D-Form Pattas, plots reserved for public use in the layout are shown in "Yellow colour", they are plot No. 4, 5, 16 and 17 in Sy. No. 67/1A, Plot Nos. 54, 55, 66, and 67 in Sy. No. 67/1B, plot Nos. 20, 19, 23, 24, 56, 57, 96 and 97 in Sy. No. 67/2A. Out of which, plot Nos. 4, 5, 16, 17, 54, 55, 66 and 67 in Sy. No. 67/1A and 67/1B are proposed for allotment to the landless poor persons under the scheme "Navaratnalu-Pedalandariki Illu".
41. The intention of the State is to convert the plots, reserved for public purpose, into house sites for allotment to the landless poor persons, depriving the residents of the layout to enjoy the amenities like school, temple, community hall and park for their use. If such conversion is permitted, the residents of the layout will lose not only their amenities and also right to enjoy clean and decent surroundings, sufficient light, pure air and water, electricity, sanitation and other civic amenities like roads etc., that too such conversion is impermissible under law as discussed above including the Andhra Pradesh Land Development (Layout and Subdivision) Rules, 2017, the Andhra Pradesh Panchayat Raj Act, 1994 and the Andhra Pradesh Town Planning Act, 1920. Therefore, the proposed allotment of plots reserved for public purpose in Sy. No. 67/1A and 67/1B (as mentioned in the plan annexed to the written instructions) is totally in violation of law declared by the Apex Court, High Court of Andhra Pradesh and the law declared by the Madras High Court in various judgments (referred supra). Therefore, such conversion of plots reserved for public purpose to house sites by the State depriving the residents of layout to enjoy the benefit in reservation of such plots for public use is a grave illegality and contrary to the provisions of enactments referred above.
42. Yet, there is a bar on such conversion and assignment of land under B.S.O. 15(4) of the A.P. Revenue Board Standing Orders, which deals with the lands that may be assigned and that may not be assigned, the same is extracted hereunder for better appreciation of the case:
"BSO 15(4) Lands that may be assigned and that may not be assigned:-
(i) All lands at the disposal of the Government except those hereinafter prohibited may be assigned. The assignment of lands shall generally be free of market value except in the case of project affected lands in which case market value shall be collected.
(ii) The assignment of the following classes of lands is prohibited:
(a) Poramboke tank beds, foreshore of tank bed cattle stands, grazing lands and reserved lands (reserved for depressed class members or for any public purpose, such as schools, playgrounds, hospitals, maternity centers, reading rooms and extension of house-sites, Panchayat purposes, town sites and lands in the proximity thereof)
(b) Land which has been occupied for 18 months and adjoins a reserve forest or an unreserved block of a square mile or more until the Collector has consulted the District Forest Officer and considered any objections, he may have to its assignment;
(c) Lands containing topes or valuable trees;
(d) Lands within cantonment limits;
(e) Lands reserved under Section 26 of the Forest Act;
(f) Lands within port limits;
(g) Lands near the sea coast within one furlong of high water mark of the sea;
(h) Water course porambokes, namely, margins of channels, streams etc.;
(i) Lands in the vicinity of aerodromes or landing grounds (i.e.) within a belt of 200 yards;
(j) Lands containing minerals, quarries, etc.
(k) Padugais i.e. land within the flood bank of rivers, lanka lands not held on ryotwari tenure, river accretions and reformed lands for which the owners have ceased to pay assessment;
(l) Lands where "pati matti" is available and;
(m) Any other lands which are required or likely to be required for any public or any special purposes necessary for the provision of amenities of the community or connected with the development of the village.
Provided, however, that tank bed lands, foreshore lands and lands under categories (g), (j), (k) and (m) above, if not immediately required or if their occupation be not objectionable at present, may be leased with a condition for resumption, when required for public purpose without payment of compensation for improvements, if any effected."
43. Clause (ii) of B.S.O. 15 (4) made it clear that assignment of Poramboke, tank beds, foreshore of tank bed cattle stands, grazing lands and reserved lands (reserved for depressed class members or for any public purpose, such as schools, playgrounds, hospitals, maternity centers, reading rooms and extension of house-sites, Panchayat purposes, town sites and lands in the proximity thereof) is prohibited. Thus, it is a clear that the land reserved for public purpose i.e. for construction of school, community hall, part etc., cannot be assigned.
44. At the same time, as per B.S.O. 15(4) (ii) (m), any other lands which are required or likely to be required for any public or any special purposes necessary for the provision of amenities of the community or connected with the development of the village, provided, however, that tank bed lands, foreshore lands and lands under categories (g), (j), (k) and (m) above, if not immediately required or if their occupation be not objectionable at present, may be leased with a condition for resumption, when required for public purpose without payment of compensation for improvements, if any effected. Thus, from B.S.O. 15(4)(m), land which is required for the provision of amenities to the community cannot be assigned.
45. As per the written instructions placed on record by the learned Assistant Government Pleader for Revenue, the State proposed to allot communal plots (reserved for public purpose) to the landless poor persons as house sites. This itself is sufficient to conclude that the respondents are proposing to grant pattas to the landless poor assigning the plots earmarked or reserved for public purpose i.e. school, community hall for the benefit of residents of layout. As such, grant of pattas in favour of beneficiaries assigning the land earmarked or reserved for public purpose is contrary to B.S.O. 15 (4) (ii) (a) and (m) A.P. Revenue Board Standing Orders. In fact, plots reserved in the layout for public purpose cannot be assigned as held in various judgments (referred supra), but in the written instructions, the State submitted that it is for communal purpose.
46. There is a difference between 'communal purpose' and 'public purpose'. If the land is meant for 'communal purpose', only particular community or group of persons can enjoy the benefit of such property. If it is meant for 'public purpose', everyone can enjoy the benefit of such property i.e. temple, school, community hall and park etc. Therefore, reservation of site is for 'public purpose' cannot be equated with 'communal purpose'. Whether it is for 'communal purpose' or 'public purpose', the same cannot be assigned in view of the interdict contained in B.S.O. 15 (4) (ii) (a) and (m) A.P. Revenue Board Standing Orders.
47. One of the contentions urged by the learned Assistant Government Pleader for Revenue is that no other site is available in the village to assign the same to the landless poor under the scheme "Navaratnalu-Pedalandariki Illu", therefore, due to administrative convenience, the respondents wanted to convert the plots earmarked for public purpose into house sites. But, such contention cannot be permitted for the reason that those plots earmarked for public purpose to provide necessary amenities like school, community hall, park etc., if it is converted, the residents of layout may lose such amenity and deprived of their right to enjoy the life with all amenities.
48. Similar contention of doctrine of administrative inconvenience was considered by the Apex Court tracing the history of Jhandewala Park and held that "Mahapalika is the trustee for the proper management of the park. When true nature of the park, as it existed, is destroyed it would be violative of the doctrine of public trust as expounded by this Court in Span Resort case "M.C. Mehta v. Kamal Nath (1997) 1 SCC 388", Public Trust doctrine is part of Indian law. In that case the respondent who had constructed a motel located at the bank of river Beas interfered with the natural flow of the river. The Apex Court said that the issue presented in that case illustrated "the classic struggle between those members of the public who would preserve our rivers, forests, parks and open lands in their pristine purity and those charged with administrative responsibilities who, under the pressures of the changing needs of an increasingly complex society, find it necessary to encroach to some extent upon open lands heretofore considered inviolate to change". In the treatise "Environmental Law and Policy: Nature. Law and Society" by Plater Abrams Goldfarb (American Casebook series-1992) under the Chapter on Fundamental Environmental Rights, in Section 1 (The Modern Rediscovery of the Public Trust Doctrine) it has been noticed that "long ago there developed in the law of the Roman Empire a legal theory known as the 'Doctrine of the Public Trust'. "In America Public Trust doctrine was applied to public properties, such as shore-lands and parks. As to how doctrine works it was stated: "The scattered evidence, taken together, suggests that the idea of a public trusteeship rests upon three related principles. First, that certain interests-like the air and the sea-have such important to the citizenry as a whole that it would be unwise to make them the subject of private ownership. Second, that they partake so much of the bounty of nature, rather than of individual enterprise, that they should be made freely available to the entire citizenry without regard to economic status, And, finally, that it is a principle purpose of Government to promote the interests of the general public rather than to redistribute public goods from broad public uses to restricted private benefit." With reference to a decision in Illinois Central Railroad Company v. Illinois [146 US 387 (1892)], it was stated that "the Court articulated in that case the principle that has become the central substantive thought in public trust litigation. When a state holds a resource which is available for the free use of the general public, a Court will look with considerable skepticism upon any Governmental conduct which is calculated either to reallocate the resource to more restricted uses or to subject public uses to the self-interest of private parties". This public trust doctrine in our country, it would appear, has grown from Article 21 of the Constitution".
49. The Division Bench of the High Court of Andhra Pradesh at Hyderabad reiterated the same principles in "Sri Balaji Park Residents Welfare Association v. Vice-Chairman, Visakhapatnam Urban Development Authority" (referred supra)
50. Apart from that, the Courts time and again considered the issue of executive necessity in catena of decisions. In "Jit Ram Shiv Kumar v. State Of Haryana AIR 1980 SC 1285" the Apex Court observed while discussing the scope of the doctrine of promissory estoppel and its applicability against the Government and Government Officers in their dealings with the subject referred the judgment of Lord Denning, J. in Robertson v. Minister of Pensions (1949) 1 KB 227 observed:
The Crown cannot escape by saying that estoppels do not bind the Crown for that doctrine has long been exploded. Nor can the Crown escape by praying hi aid the doctrine of executive necessity, that is, the doctrine that the Crown cannot bind itself so as to fetter its future executive action. That doctrine was propounded by Rowlett, J. in Redariaktiebolaget Amphitrite v. The Kins (1921) 3 KB 500 but it was unnecessary for the decision because the statement there was not a promise which was intended to be binding but only an expression of intention. Rowlett, J., seems to have been influenced by the cases on the right of the Crown to dismiss its servants at pleasure, but those cases must now all be read in the light of the judgment of Lord Atkin in Reilly v. The King (1934) AC 176 In my opinion the defence of executive necessity is of limited scope, It only avails the Crown where there is an implied term to that effect or that is the true meaning of the contract.
51. In another judgment in "Union Of India v. Godfrey Philips India Limited AIR 1986 SC 806" the Apex Court while referring to the law laid down in "Union of India v. Indo Afghan Agencies ([1968] 2 S.C.R. 366)" did not agree with the contention of the Government that due to administrative inconvenience or administrative convenience or executive necessity, the State cannot avoid its statutory obligation imposed upon it.
52. Even in the present case also, the State acquired the land in Sy. No. 67 of Sudivaripalem Village, Inkollu Mandal, Prakasam District, divided the same into plots while reserving certain plots for public purpose, strictly in compliance of the Andhra Pradesh Town Planning Act, 1920 and the Andhra Pradesh Panchayat Raj Act, 1994 and rules framed thereunder. The reservation or earmarking of plots is for the benefit of occupiers of the plots in the layout i.e. construction of school, community hall and park etc. In the absence of those amenities, it is difficult for them to live as those amenities have to be provided to them to grow physically, mentally, intellectually and spiritually. As such, the State on the ground of administrative convenience or inconvenience or executive necessity, cannot deprive the public from enjoying statutory amenities provided to them. Hence, the contention of the learned Assistant Government Pleader for Revenue is hereby rejected.
53. In view of my foregoing discussion, proposed assignment of plot Nos. 4, 5, 16, 17, 54, 55, 66 and 67 in Sy. No. 67/1A and 67/1B of Sudivaripalem village by granting house site pattas is an illegality and contrary to the provisions of the Act and the Rules framed thereunder, the Andhra Pradesh Town Planning Act, 1920 and B.S.O. 15 (4) of the A.P. Revenue Board Standing Orders.
54. One of the prayers is to direct the respondents to start construction in open plots but, this Court cannot direct the respondents to start construction in open plots, which were earmarked for school, temple, community hall and park as it is the duty of the Gram Panchayat to construct the same since the property is vested on the Gram Panchayat in terms of clause (7) Rule 11 of the Andhra Pradesh Gram Panchayat Land Development (Layout and Building) Rules, 2002. Further, the Gram Panchayat is not made as a party to the writ petition. Accordingly, the point is answered.
55. In the result, the writ petition is allowed in part declaring the action of the respondents in proposing to convert open plots which were earmarked for school, temple, community hall and park into house site to grant house site pattas to landless poor under the scheme of "Navaratnalu-Pedalandariki Illu" in Sy. No. 67 of Sudivaripalem Village, Inkollu Mandal, Prakasam District as illegal and arbitrary, while rejecting the claim of the petitioners to issue a direction to respondents to start construction in open plots, which were earmarked for school, temple, community hall and park etc. The respondents are hereby directed not to assign the open plots bearing No. 4, 5, 16, 17, 54, 55, 66 and 67 in Sy. No. 67/1A and 67/1B of Sudivaripalem village, earmarked for school, temple, community hall and park etc., to any other persons. No costs.
56. The miscellaneous petitions pending, if any, shall also stand closed.
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