VATSAVAI SRINIVASA RAJU Vs. STATE OF ANDHRA PRADESH

JUDGEMENT

(1.) The petitioners are residents of Srirampuram area in Ward No. 32 of Bhimavaram Municipality, West Godavari District. They have filed this writ petition against the Notification issued in G.O.Ms. No. 369, Municipal Administration and Urban Development (H1) Department, dated 27.9.2012, published in Andhra Pradesh Gazette, Part-I Extraordinary No. 461, dated 16.8.2012, changing the land use as residential from Primary School and local commercial use, and deletion of 30'-00" & 40'-00" wide road from the Master Plan, granted in favour of respondent Nos. 3 to 5. Respondent No. 6 is the builder and developer with whom respondent Nos. 3 to 5 have entered into a development agreement. Respondent Nos. 7 to 16 are also residents of the same locality. They are supporting the case of the petitioners. The brief facts are that, respondent Nos. 3 to 5 are owners of land measuring Ac. 1.163 cents, situate in Ward No. 32 R.S. Nos. 90/6, 90/9 and 90/10 of Bhimavaram Town. The said land was designated for primary school, local commercial use and 30'-00" - 40'-00" wide road in the Master Plan of Bhimavaram Town sanctioned in G.O.Ms. No. 951, M.A., dated 27.11.1987. Since the land has not been used for the notified purpose for over 25 years, respondent Nos. 3 to 5 applied for change of use for residential purpose. The Municipal Council passed a resolution No. 534, dated 27.01.2011 giving its approval for the change and the approval was forwarded to the Director of Town and Country Planning, Hyderabad. Upon the direction of the Director of Town and Country Planning, Hyderabad, the Municipal Council approved the revised proposal vide its resolution No. 76, dated 21.6.2011. Thereupon, the proposal was sent to the State Government for issuance of draft variation. Accordingly, the State Government vide Memo No. 20274/H1/2012-2, dated 4.8.2012 notified the draft, in exercise of powers conferred by Section 15(2)(a) of A.P. Town Planning Act, 1920 (for brevity "the Act") and published the same as required under Clause (b) thereof in the Extraordinary issue of A.P. Gazette No. 461, Part-I, dated 16.8.2012. The State Government addressed a letter dated 25.8.2012 to the Municipality with a direction to take further action as per the Act. Accordingly, the Municipality invited objections by displaying the proposal on the Notice Board on 4.8.2012 and also published the same on 15.08.2012 in the local newspaper "Andhra Bhoomi", West Godavari District Edition. No objections whatsoever were received from the general public, including the petitioners and respondent Nos. 7 to 16. Respondent Nos. 3 to 5 paid the necessary charges as required for further course of action. Thereupon, the Government issued the impugned Notification in G.O.Ms. No. 369, dated 27.9.2012 subject to certain conditions. The petitioners have challenged the said notification in this writ petition.

(2.) Sri K.V. Subrahmanya Narusu, learned counsel appearing for the petitioner would contend that the impugned notification is not sustainable in law since there is gross violation of the provisions of Rule 72(3)(c) of the Rules framed under the Act. He would contend that any variation of the town planning scheme notified earlier under Section 14 of the Act can be made by the State Government only by following the procedure prescribed under the said Rule, besides publishing the draft notification as required under Rule 72(a) in the Gazette. It is also mandatory that the executive authority of the Municipal Council shall within the prescribed period republish it in one or more conspicuous places in or near the area included in the scheme and situated within the jurisdiction of the Municipal Council. But the Municipal Council did not publish the notification, thus failed to discharge its obligation. Therefore, the impugned notification is vitiated.

(3.) Sri D. Seshadri Naidu, learned counsel appearing for the respondents 7 to 16 would support the aforesaid contentions. The counsel would further argue that the proposal to change the land use ought not to have been entertained by the respondents 3 to 5 since the proposal was not objected by them when the master-plan was finalized in the year 1987. No survey was conducted by the Municipality nor it examined whether the change was necessary. No exercise was made by the Municipality to examine the feasibility of acquiring of the land as per the guidelines issued in Memo Nos. 31738/H1/2011-2, dated 8.05.2012 and 31738/H1/2011-4, dated 13.07.2012. The public is using 30'-0" and 40'-0" road for ingress and egress and the deletion of the same would close their ingress and egress. The approval has been granted mechanically without application of mind, thus the same is vitiated.