IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) FRIDAY, THE TWENTY SEVENTH DAY OF JUNE TWO THOUSAND AND EIGHT PRESENT THE HON'BLE MR JUSTICE V.ESWARAIAH WRIT PETITION No: 8250 of 2001 BETWEEN: 1 P. Suresh S/o. Dattatreya Rao, R/o. Brahmanvadi, Medak, Medak District. 2 P. Dattatreya Rao, S/o. Narayan Rao, 3 P. Digamber Rao, S/o. Narayan Rao, 4 P. Muralidhar Rao, S/o. Narayan Rao, (Petitioners 2 to 4 are represented by 1st Petitioner who is a G.P.A. Holder of Petitioners 2 to 4. ... PETITIONERS AND 1 The Director of Town and Country Planning, Govt. of Andhra Pradesh, 640, A.C. Guards, Hyderabad, Andhra Pradesh. 2 Nagar Panchyat, (Municipal Council), Rep. by its Commissioner, Medak District. ...RESPONDENTS Petition under Article 226 of the constitution of India praying that in the circumstances stated in the Affidavit filed herein the High Court may be pleased to issue a Writ of Mandamu8s, or any other appropriate writ, order or direction, declaring the action of the 1st respondent in rejecting the petitioners Representations dt. 23.6.2000 and 22.9.2000 by his proceedings Lr.ROC No. 4663/2000/H2, dt. 25.1.2001 as illegal, arbitrary and against the Rule 10(3) of A.P. Muncipalities (Lay Out) Rules, 1970 and against the Article 14 of the Constitution of India, and consequently direct the respondents to alienate the open space of 484 sq. yards in Sy.No.677 in L.P.No.31/97 vide Lr.No.D.Dis.No.253/96/H2, dt. 3.6.97 situated at Medak, Medak District in favour of the petitioners on payment of Registration Value and pass such other order or orders. Counsel for the Petitioner: MR.DURGA REDDY THIMMAYYAGIRI Counsel for the Respondents: GP FOR MUN. ADMN. & URBAN DEV. MR. RADHA KRISHNA POLISETTY The Court made the following: ORDER: Heard the arguments of the learned counsel for the petitioners at length and the learned counsel appearing for the second respondent. 2. The undisputed facts are: Petitioners are the pattadars and owners of an extent of Ac.1.00 cents in Sy.No.677 situated at Medak Town, Medak District and the application filed by the petitioners for sanction of layout was approved by the Director of Town and Country Planning and the same was released in L.P.No.31/97 in Lr.No.D.Dis.No.253/96/H2 dated 03.06.1997 making provision for 11 plots with an open space of 10% i.e. admeasuring 484 sq. yards for public purpose as per Rule 10(3) of the Andhra Pradesh Municipalities (Layout) Rules, 1970 (for short ‘the Rules’). The said 484 sq. yards i.e. 10% of the total extent of the land has to be earmarked and set apart for open space as per sub-rule (1) of Rule 10 of the Rules. After approval of the layout, the petitioners made a representation dated 16.07.1995 for the alienation of the said 10% of the land and the said application was considered stating that 10% of the layout land which was earmarked for park under Rule 10(3) of the Rules was resolved to be sold to the petitioner on registration value vide Resolution No.37 dated 31.07.1997 of the second respondent/Nagar Panchayat, Medak and the same was sent for approval of Director of Town and Country Planning – first respondent. The first respondent considered the said application and rejected the same vide his proceedings dated 25.01.2001 for approval of the said resolution on the ground that the High Court delivered the judgment in WP.No.26276 of 1995 stating that the Government in its Memo.No.34336/A/95-6 Municipal Administration dated 05.11.1997 issued orders not to alienate the open space of approved layouts in the municipality as they are meant for public amenities and they are not to be used for any other purpose. Accordingly, the request of the petitioners for allotment of the open space in the approved layout was rejected. Aggrieved by the said order of the first respondent dated 25.01.2001, this writ petition has been filed seeking to declare the said rejection order of the first respondent dated 25.01.2001 as illegal and arbitrary and against Rule 10(3) of the Andhra Pradesh Municipalities (Layout) Rules, 1970 and to set aside the same directed the respondents to alienate the said land. 3. Sri T. Durga Reddy, learned counsel for the petitioners, submits that Rule 10(1) of the Rules provides for the requirement to set apart 10% of the total land for play ground, park or for any another public purpose but even that 10% of the land earmarked for the park or for the public purpose in respect of small extents i.e. less than hectare, which is set apart under Rule 10(1) of the Rules can be transferred by the council under Rule 10(3) with the concurrence of the Director of Town and Country Planning provided it does not form part of compact block of the open space which could be carved out with the neighbouring areas layout areas to anybody at the rate fixed by the District Collector. He further submits that there is no other neighbouring layout so as to make use of that open space of 484 sq. yards to form a compact block of open space and in fact, in the neighbouring layout a separate big park is available and therefore, the park area left in the layout plan can be permitted to be alienated in favour of the petitioners. Accordingly, the municipal council resolved to alienate the said land on the registration value but the Director of Town and Country Planning erroneously rejected the same. He further submits that the statutory rules provide for disposal of the said land at the discretion of the municipal council but the first respondent erroneously disapproved the discretion exercised by the municipal council. 4. Learned counsel for the petitioners further submits that the judgment relied on by the first respondent in the case of CHINTALA RADHA MADHAVA RAO v. GOVERNMENT OF ANDHRA PRADESH[1] (WP.No.26276 of 1995) has no application to the facts of the case to contend that the 10% area earmarked under Rule 10(1) of the Rules and as per the legal requirement of Section 184 sub-clause (b) of clause (2) of the Andhra Pradesh Municipalities Act, 1965 (for short ‘the Act’), can be alienated in favour of the owner or any other person under Rule 10(3) of the Rules but the same was not at all considered. 5. I have perused the aforesaid judgment as well as Rule 10(3) of the Rules. As per Rule 10(3) of the Rules, the Council is at liberty to dispose the said land with the concurrence of the Director, Town and Country Planning but a perusal of Section 184(2)(b) of the Act goes to show that the owner of the land who intends to utilize or sell the said land for building purpose shall set apart in the layout adequate area of land on such a scale as may be prescribed for a playground, a park, an educational institution or for any other public purpose. Therefore, in consonance with Section 184 of the Act, Rule 10(1) of the Rules has been made but as per Rule 10(3) the land can be disposed of with the concurrence of the Director of Town and Country Planning. A perusal of the Rule 10(3) goes to show that discretion is vested on the council subject to the concurrence of the Director of Town and Country Planning. Though the second respondent – municipal council liberally exercised its discretion in alienating the said land, the Director of Town and Country Planning rejected the application of the petitioner-society on the ground that the said land is earmarked for park and as per the judgments of the Supreme Court and the High Court the area earmarked for the parks, playgrounds, educational institutions or any other public purpose, shall not be allowed to be alienated in favour of private persons or the original owners. It is also pertinent to note that as per the judgments of the Supreme Court one of the main objects of public parks or playgrounds is the promotion of the health of the community by means of ventilation and recreation. It is the preservation of the quality of life of the community that is sought to be protected by means of these regulations. In view of the aforesaid facts and circumstances of the case, I am of the opinion that the first respondent rightly rejected the approved resolution of Nagar Panchayat Municipal Council. The writ petition is accordingly dismissed. There shall be no order as to costs. ______________ V. ESWARAIAH, J June 27, 2008 DSK [1] 1997 (5) ALD 828