Machavarapu Srinivasa Rao vs Vijayawada, Guntur, Tenali, Mangalagiri Urban Development Authority

(Arising out of Special Leave Petition (Civil) No.757 of 2011)

Machavarapu Srinivasa Rao and another ... Appellants

Versus

The Vijayawada, Guntur, Tenali, Mangalagiri

Urban Development Authority and others ... Respondents

With

Contempt Petition (C) No.300 of 2011 in

Civil Appeal No. 7935 of 2011

(Arising out of SLP(C) No.757 of 2011)

J U D G M E N T

G.S. Singhvi, J.

1. Leave granted.

2. The questions which arise for consideration in this appeal are whether

respondent No.1 - the Vijayawada, Guntur, Tenali, Mangalagiri Urban

Development Authority had the jurisdiction to grant permission to respondent No.3

- Sri Venkateswara Swamivari Alaya Nirmana Committee for construction of

2

temple at the site of which land use was shown as recreational in the Zonal

Development Plan approved by the State Government and whether the Division

Bench of the High Court of Andhra Pradesh was justified in refusing to nullify the

decision taken by respondent No.1 by assuming that it was only a case of allotment

of site.

3. Respondent No.1 was constituted under Section 3(1) of the Andhra Pradesh

Urban Areas (Development) Act, 1975 (for short, `the Act') to promote and secure

the development of different parts of the four towns, namely, Vijayawada, Guntur,

Tenali and Mangalagiri. In 1978, respondent No.1 acquired 91 acres land at

Chenchupet, Tenali and prepared a layout plan for development. As per the

approved plan, 10 sites were earmarked for parks. These included an area of 75

cents comprised in Town Survey No.2/3, Block No.1, Ward No.1, Chenchupet.

4. The Master Plan of Tenali town was approved by the State Government vide

G.O.Ms. No.969 dated 21.11.1978 and the Master Plan of the urban area of

respondent No.1 was approved vide G.O. Ms. No.144 dated 3.3.1988. After about

15 years, the State Government decided that the Master Plans be replaced by a

comprehensive Zonal Development Plan. For this purpose, the Vice Chairman of

respondent No.1 was authorized to take necessary steps. Thereafter, the area

covered by the urban region of respondent No.1 was divided into 23 planning

3

zones and it was decided that Zonal Development Plans be prepared on priority

basis in respect of 15 zones including Tenali zone. The draft Zonal Development

Plan of Tenali was published in the local newspapers and objections/suggestions

were invited from the public. In the final Zonal Development Plan of Tenali town,

which was approved by the State Government vide G.O. Ms. No.689 dated

30.12.2006, land use was divided into the following 9 (main) categories:

"1. Residential use Zone

2. Mixed Residential use Zone.

3. Commercial use Zone [Local, Central and General Commercial

use].

4. Industrial use Zone

5. Public and Semi public use Zone

6. Recreational use Zone.

7. Transportation and Communication use Zone (Roads,

Railways, Airports, Bus Depots and Truck Terminals)

8. Agricultural use zone.

9. Water Bodies."

5. Respondent No.3, which was registered as a society in March, 2009 under

the Andhra Pradesh Societies Registration Act, 2001, submitted an application

dated 28.5.2009 to respondent No.1 for grant of permission to construct a temple at

the site which formed part of Town Survey No.2/3. After considering the

4

objections received from the public, respondent No.1 passed resolution dated

4.2.2010 for grant permission to the Residents Welfare Association to construct Sri

Venkateswara Swamy Vari Temple. In furtherance of that decision, Vice-

Chairman of respondent No.1 issued order dated 30.3.2010, the relevant portions

of which, as contained in Annexure P-4 of the SLP paper book, are extracted

below:

"Therefore the `Residential Welfare Association' is permitted to

construct Sri Venkateswara Swamy Vari Temple in the earmarked site

and orders are issued accordingly.

The said `Residential Welfare Association' Alaya Committee is

directed to follow the following conditions:

1. The said Association has no ownership rights on the site earmarked

for Religious center in the IDSMT Scheme. The said Association

has right to construct the temple only. The complete rights on the

site and building shall rest with the UDA only.

3. The Association should not make use of allotted site for other

purposes except for the construction of temple.

4. Temple should be constructed within three years from the date of

issue of this order. Or else the UDA is having every right to take

over the site along with the incomplete building.

5. In the said site activities pertaining to Temple alone should be

conducted and it should not be used for commercial and business

purposes.

6. The meetings and activities of Alaya Committee should be

conducted as per laws.

7. The conditions made by the Government/VGTM UDA from time to

time shall be in force.

5

8. If the conditions are violated the said site along with the building

shall be taken over."

After about one month and ten days, the Vice Chairman of respondent No.1

issued amended order dated 10.5.2010 in the name of respondent No.3 because by

mistake permission for construction of temple was issued in favour of the

Residents Welfare Association, which had not even submitted application.

6. Having succeeded in convincing respondent No.1 to grant permission for

construction of temple at the site, which did not even belong to it, respondent No.3

approached the State Government for change of land use from recreational (park)

to public/semi public. Simultaneously, the Vice Chairman of respondent No.1

addressed letter dated 15.6.2010 to the Principal Secretary to Government,

Municipal Administration and Urban Development Department for change of land

use. He pointed out that in the Integrated Development of Small and Medium

Towns Scheme, 1981 (for short, `the 1981 Scheme') 15 cents land comprised in

Town Survey No.2/3 was reserved for religious center but, by mistake the same

was shown as earmarked for recreational use in the Zonal Development Plan.

7. While respondent Nos. 1 and 3 were making efforts for securing an order

from the State Government for change of land use, the appellants filed writ petition

6

by way of public interest litigation questioning the decision of respondent No.1 to

sanction construction of temple. They pleaded that the Zonal Development Plan

prepared by respondent No.1 and approved by the State Government is statutory in

character and land covered by the Zonal Development Plan cannot be used for a

purpose other than the one specified in the Plan and respondent No.1 did not have

the jurisdiction to sanction construction of temple at the site of which land use was

shown as recreational (park). In the counter affidavit filed on behalf of respondent

No.1, it was pleaded that mere allotment of land for construction of temple did not

give any cause to the writ petitioners to challenge order dated 30.3.2010 and as and

when an application is made for construction of temple, respondent No.1 will

consider whether land can be used for a purpose other than the one specified in the

Zonal Development Plan. In the affidavit filed on behalf of respondent No.3, it

was pleaded that as per the Zonal Development Plan, land coming under the

Residential Use Zone can be utilized for construction of Kalyana Mandapams

without creating any noise pollution, function halls/public assembly halls, religious

center etc. and in the absence of any bar in the Zonal Development Plan, no

exception can be taken to the permission granted by respondent No.1 for

construction of temple.

7

8. The Division Bench of the High Court noticed that as per the approved

Zonal Development Plan, Town Survey No.2/3 is earmarked for recreational use

(park) and held that unless the State Government relaxes the use of land,

respondent No.1 cannot grant permission for construction of temple. However, the

appellants' prayer for quashing order dated 30.3.2010 was declined by making the

following observations:

"Once the land was earmarked for the parks/recreational use in

the modification of the Master Plan of Tenali Town as

approved in G.O.Ms.No.689, dated 30.12.2006, unless the

Government relaxes the use of the land for any other purpose

than the one notified, the first respondent cannot grant

permission for construction of temple if it is prohibited under

G.O.Ms.No.689, dated 30.12.2006. Mere allotment of the land

for construction of temple will not give rise any cause of action

unless permission for construction of temple is accorded by the

first respondent on submitting the plans. As and when the

plans are submitted with specific proposal for construction of

temple, the first respondent is under obligation to consider the

prohibition contained under the modified Master Plan issued in

G.O.Ms.No.689, dated 30.12.2006. It is under obligation to

invite the objections from the residents of the locality including

the petitioners and consider the said objections before granting

permission. If such construction of temple is prohibited, it is

also open for the third respondent to move the Government by

filing an application seeking relaxation of the land use and if

any relaxation is granted by the Government, it can make its

application to the first respondent."

(emphasis supplied)

8

9. Learned counsel for the appellants argued that the impugned order is liable

to be set aside because the High Court disposed of the writ petition by erroneously

assuming that order dated 30.3.2010 was only for allotment of land to respondent

No.3. Learned counsel emphasized that in the approved Zonal Development Plan,

land use of Town Survey No.2/3 has been shown as recreational (park) and argued

that respondent No.1 committed a jurisdictional error by sanctioning construction

of temple at the site without even making an effort to find out whether the site

belongs to respondent No.3.

10. Learned counsel for the respondents supported the impugned order and

argued that the permission granted by respondent No. 1 cannot be faulted merely

because land use of the site has not been changed by the State Government.

Learned counsel for respondent No.1 submitted that while preparing the Zonal

Development Plan the competent authority had overlooked the fact that in the 1981

Scheme 15 cents land forming part of Town Survey No.2/3 was reserved for

religious center and this is the reason why the Vice Chairman of respondent No.1

had written to the State Government to rectify the mistake. He then argued that the

appellants do not have the locus to question resolution dated 4.2.2010 and order

dated 30.3.2010 because they did not file objection against the proposed

9

construction of temple at the site of which land use has been shown in the Zonal

Development Plan as recreational.

11. We shall first consider whether the High Court was justified in declining

relief to the appellants on the premise that respondent No.1 had merely allotted

land to respondent No.3. In this context, it is apposite to observe that none of the

documents produced before the High Court and this Court show that respondent

No.3 had applied for allotment of land for construction of temple and respondent

No.1 had allotted the site after following some procedure consistent with the

doctrine of equality enshrined in Article 14 of the Constitution. Not only this, a

bare reading of order dated 30.3.2010 leaves no manner of doubt that respondent

No.1 had granted permission to respondent No.3 for construction of temple at the

site in question. There is nothing in the language of that order or the conditions

enshrined therein from which it can be inferred that respondent No.1 had allotted

land to respondent No.3. Therefore, the High Court was clearly in error in

deciding the writ petition by assuming that it was only a case of allotment of land.

12. The next question, which merits consideration is whether respondent No.1

had the jurisdiction to allow construction of temple at the site which was reserved

for recreational use in the Zonal Development Plan. Section 2(e) which contains

10

the definition of term "development" and Sections 7, 12(1), (2), (3) and (4) and 15

of the Act, which have bearing on the decision of this question read as under:

"2(e) `development' with its grammatical variations means the

carrying out of all or any of the works contemplated in a master

plan or zonal development plan referred to in this Act, and the

carrying out of building, engineering, mining or other operations

in, on, over or under land, or the making of any material change in

any building or land and includes redevelopment.

Provided that for the purposes of this Act, the following operations

or uses of land shall not be deemed to involve development of the

land that is to say-

(i) the carrying out of any temporary works for the

maintenance, improvement or other alteration of any building,

being works which do not materially affect the external appearance

of the building:

(ii) the carrying out by a local authority of any temporary

works required for the maintenance or improvement of a road, or

works carried out on land within the boundaries of the road;

(iii) the carrying out by a local authority or statutory

undertaking of any temporary works for the purpose of inspecting,

repairing or renewing any sewers, mains, pipes, cables or other

apparatus, including the breaking open of any street or other land

for that purpose:

(iv) the use of any building or other land within the cartilage

purpose incidental to the enjoyment of the dwelling house as such;

and

(v) the use of any land for the purpose of agriculture,

gardening or forestry (including afforestation) and the use for any

purpose specified in this clause of any building occupied together

with the land so used;

7. Zonal development plans: - (1) Simultaneously with the

preparation of Master Plan or as soon as may be thereafter the

Authority shall proceed with the preparation of zonal development

11

plan for each of the zones into which the development area may be

divided.

(2) A zonal development plan may,-

(a) contain a site plan and land use plan for the development of the

zone and show the approximate locations and extents of land uses

proposed in the zones for such purposes as roads, housing, schools,

recreation, hospitals, industry, business, markets, public works and

utilities, public buildings, public and private open spaces and other

categories of public and private uses;

(b) xxx xxx xxx

(c) xxx xxx xxx

(d) in particular, contain provisions regarding all or any of the

following matters, namely--

(i) xxx xxx xxx

(ii) the allotment or reservation of lands for roads, open spaces,

gardens, recreation grounds, schools, markets and other public

purposes;

(iii) to (xii) xxx xxx xxx

12. Modifications to plan: - (1) The Authority may make such

modifications to the plan as it thinks fit, being modifications

which, in its opinion, do not effect important alterations in the

character of the plan and which do not relate to the extent of land

uses or the standards of population density.

(2) The Government may suo motu or on a reference from the

Authority make any modifications to the plan, whether such

modifications are of the nature specified in sub-section (1) or

otherwise.

12

(3) Before making any modifications to the plan, the Authority or,

as the case may be, the Government shall publish a notice in such

form and manner as may be prescribed inviting objections and

suggestions from any person with respect to the proposed

modifications before such date as may be specified in the notice

and shall consider all objections and suggestions that may be

received by the Authority or the Government.

(4) Every modification made under the provisions of this section

shall be published in such manner as the Authority or the

Government, as the case may be, may specify and the

modifications shall come into operation either on the date of the

publication or on such other date as the Authority or the

Government may fix.

15. Use of the land and buildings in contravention of plans: -

After the coming into operation of any of the plans in a zone, no

person shall use or permit to be used any land or building in that

zone otherwise than in conformity with such plan:

Provided that it shall be lawful to continue to use upon such terms

and conditions as may be determined by regulations made in this

behalf, any land or building for the purpose for which, and to the

extent to which, it is being used on the date on which such plan

comes into force."

13. The definition of the "development" is comprehensive. It takes within its

fold the carrying out of all or any of the works contemplated in a Master Plan or

Zonal Development Plan and the carrying out of building, engineering, mining or

other operations in, on, over or under land, or the making of any material change in

the existing building or land. Redevelopment is also included within the ambit of

the term "development". The proviso to the definition excludes certain works,

13

which are of temporary nature. Section 13 of the Act empowers the Government

to declare an urban area or group of urban areas to be a development area for

proper development of such area or areas. Once an urban area or a group of urban

areas is declared to be a development area, the Government is obliged to constitute

an Urban Development Authority under Section 3(1). The Development Authority

is enjoined with the task of promoting and ensuring development of all or any of

the areas comprised in the development area according to the sanctioned plan and

for that purpose, the Authority has the power to acquire, by way of purchase or

otherwise, hold, manage, plan, develop and mortgage or otherwise dispose of land

and other property, to carry out by or on its behalf building, engineering, mining

and other operations, to execute works in connection with supply of water and

electricity, disposal of sewerage and control of pollution, other services and

amenities [Section 5(1)]. Chapter III of the Act contains provisions for preparation

of Master Plan and Zonal Development Plan. Section 7(1) provides for preparation

of Zonal Development Plan for each of the zones into which the development area

may be divided. Section 7(2) enumerates the matter, which may be specified in the

Zonal Development Plan. Clause (a) thereof speaks among other things of land

use plan for the development of the zone and the approximate locations and extents

of land uses proposed in the zones for purposes like roads, housing, schools,

recreation, hospitals, industry, business, markets, public works and utilities, public

14

buildings, public and private open spaces and other categories of public and private

uses. Sections 8 and 9 lay down the procedure for preparation and approval of the

Master Plan/Zonal Development Plan. Section 10 lays down that immediately

after approval of Plan by the State Government, the authority shall publish a notice

evidencing such approval and from the date of first publication of notice the Plan

shall come into operation. Section 12(1) empowers the Development Authority to

make appropriate modifications in the plan which do not effect important

alterations in the character of the plan and which do not relate to the extent of land

uses or the standards of population density. Section 12(2) empowers the State

Government to make any modification in the plan either on its own or on a

reference made by the Development Authority. Section 12(3) and (4) lays down

the procedure for making modification of plan which is substantially similar to the

procedure prescribed for preparation of the plan. Section 15 prohibits the use of

land otherwise than in conformity with the plan.

14. An analysis of the above noted provisions shows that once the Master Plan

or the Zonal Development Plan is approved by the State Government, no one

including the State Government/Development Authority can use land for any

purpose other than the one specified therein. There is no provision in the Act

under which the Development Authority can sanction construction of a building

15

etc. or use of land for a purpose other than the one specified in the Master

Plan/Zonal Development Plan. The power vested in the Development Authority to

make modification in the development plan is also not unlimited. It cannot make

important alterations in the character of the plan. Such modification can be made

only by the State Government and that too after following the procedure prescribed

under Section 12(3).

15. In the pleadings filed before the High Court, the respondents had not

controverted the assertion made by the appellants that in the approved Zonal

Development Plan, land comprised in Town Survey No.2/3 was earmarked for

recreational use. Therefore, in the absence of change of land use which could have

been sanctioned only by the State Government, respondent No.1 had no

jurisdiction to grant permission to respondent No.3 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. It is a different

thing that the State Government has not sanctioned change of land use by

modifying the zonal development plan in accordance with the procedure prescribed

under Section 12(3) and (4). In this scenario, there is no escape from the

16

conclusion that respondent No.1 could not have entertained the application made

by respondent No.3 and granted permission for construction of temple at the site

reserved for recreational use and that too by ignoring that the same had not been

allotted to respondent No.3 by any public authority. As a corollary, it must be held

that the High Court committed serious error by refusing to quash order dated

30.3.2010 by assuming that it was merely a case of allotment of land.

16. The view taken by us on the legality of order dated 30.3.2010 finds support

from the judgment of this Court in Bangalore Medical Trust v. B.S. Muddappa

(1991) 4 SCC 54. In that case, allotment of land, which was shown as open space

in the sanctioned development plan, for construction of a nursing home was

challenged on the ground that the State Government and the Bangalore

Development Authority did not have the jurisdiction to make such allotment. The

learned Single Judge negatived the challenge but the Division Bench allowed the

appeal and quashed the allotment. The judgment of the Division Bench was

approved by this Court. R.M. Sahai, J., who delivered the main judgment

highlighted the importance of reservation of land for the public park in a

development plan and adversely commented upon use thereof for construction of

nursing home in the following words:

"Public park as a place reserved for beauty and recreation was

developed in 19th and 20th century and is associated with growth of

17

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 38-A 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."

T.K. Thommen, J., who agreed with R.M. Sahai, J. referred to the provisions of the

Bangalore Development Authority Act, 1976 and observed:

"The scheme is meant for the reasonable accomplishment of the

statutory object which is to promote the orderly development of the

city of Bangalore and adjoining areas and to preserve open spaces by

reserving public parks and playgrounds with a view to protecting the

residents from the ill-effects of urbanisation. It meant for the

18

development of the city in a way that maximum space is provided for

the benefit of the public at large for recreation, enjoyment,

`ventilation' and fresh air. This is clear from the Act itself as it

originally stood. The amendments inserting Section 16(1)(d), 38-A

and other provisions are clarificatory of this object. The very purpose

of the BDA, as a statutory authority, is to promote the healthy growth

and development of the city of Bangalore and the areas adjacent

thereto. The legislative intent has always been the promotion and

enhancement of the quality of life by preservation of the character and

desirable aesthetic features of the city. The subsequent amendments

are not a deviation from or alteration of the original legislative intent,

but only an elucidation or affirmation of the same.

Protection of the environment, open spaces for recreation and fresh

air, playgrounds for children, promenade for the residents, and other

conveniences or amenities are matters of great public concern and of

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

public interest which is sought to be promoted by the Act by

establishing the BDA. The public interest in the reservation and

preservation of open spaces for parks and playgrounds cannot be

sacrificed by leasing or selling such sites to private persons for

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

legislative intent and inconsistent with the statutory requirements.

Furthermore, it would be in direct conflict with the constitutional

mandate to ensure that any State action is inspired by the basic values

of individual freedom and dignity and addressed to the attainment of a

quality of life which makes the guaranteed rights a reality for all the

citizens."

17. The matter deserves to be considered from another angle. It is neither the

pleaded case of respondent No.3 nor any document was produced before the High

Court and none has been produced before this Court to show that 15 cents land

forming part of Town Survey No. 2/3 was allotted to it by any public authority

after following a recognized mode of disposal of public property. It has surprised

19

us that even though respondent No.3 was not an owner of the site, it made an

application for grant of permission to construct the temple and functionaries of

respondent No.1 accepted the same without making any inquiry about the title of

respondent No.3. Thus, the illegality committed by respondent No.1 in issuing

order dated 30.3.2010 is writ large on the face of the record.

18. In the result, the appeal is allowed and the impugned order is set aside. As a

corollary, the writ petition filed by the appellants is also allowed and order dated

30.3.2010 as also amended order dated 10.5.2010 issued by respondent No.1 are

quashed. The parties are left to bear their own costs.

19. Since we have allowed the main appeal, the contempt petition filed by the

appellants is disposed of as infructuous.

.............................J.

[G.S. Singhvi]

..............................J.

[H.L. Dattu]

New Delhi

September 19, 2011.