The Hon’ble Sri Justice R.Subhash Reddy Writ Petition No.7186 of 2005 Order: The petitioner-Sri Konaseema Kshatriya Seva Samithi, Amalapuram, has filed this Writ Petition questioning the validity of endorsement issued by the third respondent-Commissioner, Amalapuram Municipality, vide ROC.No.537/2004-G1, dated 05-03-2005, pursuant to the directions issued by the first respondent-Director of Town and Country Planning, Hyderabad, vide D.Dis.No.6623/2004/R1, dated 18-10-2004. The brief facts of the case are as under: The petitioner-Seva Samithi is the owner of a land admeasuring Ac.1-09 guntas in R.S.No.515/1B, which is abutting the National Highway 214 Kathipudi - Pamarru Road. The petitioner-Seva Samithi applied for permission for construction of a Kalyana Mandapam therein and the third respondent forwarded the same to the first respondent. The first respondent by his proceedings, dated 18-10-2004, issued technical clearance for construction of Kalyana Mandapam subject to as many as 13 conditions. Condition No.11 thereof reads as under: “The Municipal Commissioner shall collect 10% of open space cost as per the market value on the total extent towards site approval in addition to other charges like Building permission fees, license fees, betterment charges etc., as per the rules in force.” Consequent thereto, the third respondent addressed endorsement, dated 05-03-2005, to the petitioner-Seva Samithi requesting it to fulfill the conditions laid down by the first respondent in his proceedings, dated 18-10-2004. The imposition of 10% open space cost, as per the market value, on the total extent of land is questioned by the petitioner-Seva Samithi mainly on two grounds; Firstly, inasmuch as the petitioner-Seva Samithi is a charitable institution, there is no authority or jurisdiction to the respondents to demand 10% open space cost as per the market value; Secondly, if at all the petitioner-Seva Samithi is liable to pay 10% open space cost, it has to pay only Rs.28,122/- but not Rs.5,04,000/- as claimed by the respondents, as the market value of Ac.1-09 guntas of the site in question as on 01-11-2004 was Rs.2,81,220/-. Though the Writ Petition is of 2005, counter affidavit is filed only on behalf of the first respondent-Director of Town and Country Planning and there is no counter-affidavit filed on behalf of the third respondent-Commissioner, Amalapuram Municipality. In the counter-affidavit filed by the first respondent- Director of Town Planning, while denying the various allegations made by the petitioner, it is stated that as per the provisions of the A.P.Municipalities Act, 1965 and the Layout Rules framed thereunder, 10% open space is required to be left for approval of layout. It is further stated that since the site under reference has not been covered by any approved layout and there is no possibility to provide the required 10% open space in the site under reference, a condition was imposed that 10% open space cost shall be collected from the applicant towards the site approval. Ultimately, it is pleaded that such imposition of 10% open space cost is in accordance with the A.P.Municipalities Act, 1965 and the Rules framed thereunder. Heard Sri E.Sambasiva Pratap, learned Counsel for the petitioner, the learned Government Pleader for Municipal Administration appearing for the first respondent- Director of Town and Country Planning and Sri S.Nageswar Reddy, learned Counsel for the third respondent-Commissioner, Amalapuram Municipality. It is submitted by learned Counsel for the petitioner that the petitioner-Seva Samithi is not questioning the very condition demanding 10% open space cost, but it is questioning the computation thereof on square yard basis. It is further submitted that the plot in question is not a divided plot and the same is not covered by any approved layout and as such, 10% open space cost has to be computed on the entire land of Ac.1-09 guntas on acreage basis but not on square yard basis. It is further submitted that as per the Certificate issued by the Sub-Registrar, Amalapuram, the market value of the entire extent of Ac.1- 09 guntas of land in question as on 01-11-2004 was 2,81,220/- and as such, the petitioner has to pay only 10% on the said amount which comes to Rs.28,122/-. On the other hand, it is submitted by learned Counsel appearing for the first and third respondents that inasmuch as the petitioner is using the land in question for commercial purpose, it has to pay 10% open space cost by computing it on square yard basis. Perused the entire material available on record. It is not in dispute that the petitioner-Seva Samithi wants to construct Kalyana Mandapam in the land in question. As per the Layout Rules of 1970, construction can be made on a site only after obtaining approval of layout and 10% open space is required to be left for such approval. The first respondent-Director of Town and Country Planning, while granting technical approval, has imposed the condition to pay 10% open space cost, as per the market value, on the total extent of land towards the site approval in addition to other charges like building permission fee, betterment charges etc. The petitioner- Seva Samithi is constructing the Kalyana Mandapam as a compact block without leaving any open space, as contemplated under the Layout Rules, and as such, the abovesaid condition is rightly imposed by the first respondent. However, there is no reason or justification on the part of the respondents to arrive at Rs.5,04,000/- towards 10% open space cost, as per the market value, on the total extent of the land in question by computing it on square yard basis. In proceedings, dated 19-11-2004, the petitioner was requested to pay an amount of Rs.28,960/- towards building permission fee, an amount of Rs.48,516/- towards development charges and also an amount of Rs.5,04,400/- towards 10% open space cost, as per the market value, on the total extent of the land in question. In the counter-affidavit filed by the first respondent, there is no explanation with regard to computation of 10% open space cost, as per the market value, on the total extent of land on square yard basis. Though there is no explanation, by way of counter, by the third respondent to arrive at the figure of Rs.5,04,400/- towards 10% open space cost, as per the market value, on the total extent of land, but it is submitted by learned Standing Counsel appearing for the third respondent that the same was arrived at after computing the same on square yard basis. When the land in question is being used as compact block for the purpose of Kalyana Mandapam and its market value, as certified by the Sub-Registrar Amalapuram, was Rs.2,81,220/-, there is no basis for calculating 10% open space cost on square yard basis and arriving at the figure of Rs.5,04,400/- Even during the course of arguments, it is not explained as to what is the basis for the respondents for calculating the open space cost on square yard basis. In view of the Market Value Certificate issued by the Sub Registrar, Amalapuram, the market value of the land in question as on 01-11-2004 was Rs.2,81,220/- and 10% open space cost thereon would be Rs.28,122/-. In that view of the matter, I do not find any illegality in imposing Condition No.11 in proceedings, dated 18-10-2004, of the first respondent. But at the same time, I do not find any justification on behalf of the respondents in demanding the petitioner for payment of 10% open space, as per the market value, on the total extent of land, by computing the same on square yard basis. For the aforesaid reasons, the Writ Petition is allowed in part and the endorsement issued by the third respondent-Commissioner, Amalapuram Municipality, vide ROC.No.537/2004-G1, dated 05-03-2005, is hereby quashed. However, the respondents are directed to consider the petitioner’s application, seeking permission for construction of Kalyana Mandapam in the land in question, subject to payment of 10% of open space cost, as per the market value, by computing the same on acreage basis only. Since the delay occurred in view of the untenable objections raised by the respondents, I direct the respondents to consider the market value of the land in question as on the date of the petitiner’s application. It is also made clear that the payment of such open space cost shall be in addition to the permission fee, development charges etc., as per the A.P. Municipalities Act, 1965 and the Layout Rules framed thereunder. There shall be no order as to costs. _________________ R.Subhash Reddy, J Dated 9th December, 2009 lur