THE HON'BLE SRI JUSTICE P.S.NARAYANA W.P.No.8859 of 2008 15th December, 2009 Between :- G.Laxmana Rao and others .. Petitioners and District Collector, Ranga Reddy District at Lakdikapul, Hyderabad and others .. Respondents THE HON'BLE SRI JUSTICE P.S.NARAYANA W.P.No.8859 of 2008 ORDER:- This Court issued rule nisi on 12-6-2008. 2. 4th respondent filed counter affidavit. 3. Sri Raghuveera Reddy, the learned Counsel representing writ petitioners would maintain that when originally the layout was approved, the same was done by the competent authority and by virtue of the subsequent change, the present action had been initiated that too without putting the petitioners on notice. The learned Counsel in all fairness also would maintain that the notice had been served on the vendors of the petitioners who had lost interest since the vendors alienated their properties. The learned Counsel also had drawn the attention of this Court to the relevant rules and would maintain that at any rate, let the petitioners be given an opportunity in this regard. 4. The learned A.G.P. for Panchayat Raj had taken this Court through the counter affidavit filed by the 4th respondent and would maintain that in the light of the clear stand taken by R.4, this is not a fit matter to be interfered with. 5. Sri Elisha, the learned Counsel representing R.4 would maintain that the Rules issued under G.O.Ms.No.377, Panchayat Raj (S.II) Department, dt.12-10-1973 had been superseded by G.O.Ms.No.67, PR AND RD (Pts.IV) Dt.26-2-2002. The learned Counsel also had drawn the attention of this Court to Rules 11 and 13 of the Andhra Pradesh Gram Panchayat Land Development (Layout and Building) Rules, 2002 of G.O.Ms.No.67, PR AND RD (Pts.IV) Dt.26-2-2002 (hereinafter in short referred to as ‘the Act’ for the purpose of convenience) and would maintain that in the light of the same, there cannot be any doubt or controversy that the layout is unauthorized and hence the Writ Petition to be dismissed. 6. Heard the Counsel. 7. The Writ Petition is filed for a Writ of Mandamus declaring and setting aside the order dt.25-5-2006 in Proc.No.B2/4480/2005 on the file of the 2nd respondent herein, as illegal, arbitrary, without jurisdiction and violative of principles of natural justice, by consequently directing the 4th respondent to grant permission for construction to the petitioners, as per the applications being made by them, award costs and pass such other suitable orders. 8. The first petitioner had sworn to the affidavit filed in support of the writ petition. It is stated that he is the owner and possessor of plot bearing No.1320 admeasuring 200 Sq.Yds. in Sy.No.744 of Korremula village, Ghatkesar Mandal, Ranga Reddy District, having purchased the same through registered Sale Deed dt.5-11-93 from one Ch.Yadaiah. The said Yadaiah in turn had purchased the said property from its original owners through registered sale deed vide document No.7207 of 1987. It is also stated that his vendor had been in possession of the above plot from 1987 onwards and thereafter he had been in possession of the same. So also, the other petitioners are the owners and possessors of plots admeasuring 200 Sq.Yds. each, bearing Nos.1293, 1298, 1318, 1297, 1310, 1291, 1296, 1295, 1299, 310, 283, 209, 336, 332, 330, 842, 1170, 1172, 1171, 1256, 1238, 1237, 1240, 1077, 1183, 946, 606 and 607 respectively in Sy.No.s 743 and 744 of Korremula village, Ghatkesar, mandal, Ranga Reddy District, having purchased the same through registered sale deeds. 9. It is also stated that originally M/s.M.Lachaiah Goud and 4 others were the owners and possessors in respect of the land bearing Sy.No.744 admeasuring Ac.12.11 gts. As per the provisions of the A.P.Gram Panahcyats (Building) Rules, 1972, issued under G.O.Rt.No.377, dt.12-10-73, rules were made in exercise of powers conferred under sub-section (1)(xvi) of sub-section (2) of Section 217 of the A.P.Gram Panchayat Act which obligates the owners of lands to make a layout while disposing of the lands. Accordingly, the above said persons had obtained layout from the 4th respondent herein during the year 1985 i.e., on 27-3-85 in respect of the lands bearing Sy.No.739 and 749 and about 2000 plots were carved out in the total area of the said land. After obtaining layout, said persons had sold the above property to various persons and registered sale deeds were executed in favour of the petitioners and their vendors during the year 1987. 10. It is further stated that the 1st petitioner had made an application to the 4th respondent for permission to construct house in his plot. Though the same was sanctioned in his favour on 11-11-93, due to financial constraints, he could not construct the house at that point of time. So also, the other petitioners herein had been in possession of their respective plots by paying taxes to the Gram Panchayat. Recently, when the 1st petitioner went to the office of the 4th respondent for renewal of construction permission granted in his favour, he was informed that the 2nd respondent had passed the order dt.25-5-2006 in Proc.No.B2/4480/2005 directing not to accord any construction permission in respect of the above property. The said order is impugned in the present Writ Petition. 11. Further it is stated that the impugned Order passed by the 2nd respondent is ex facie illegal, arbitrary, against the principles of natural justice and without jurisdiction. Once a layout is sanctioned by the Gram Panchayat under the provisions of the Rules, there is no power or authority, much less for the 2nd respondent, to cancel the same. The said layout Rules are issued as per the powers conferred under Section 268 (2) of the A.P.Panchayat Raj Act. Further it is also stated that Executive Authority of the Gram Panchayat had granted layout and their vendors had already complied with the conditions imposed in the layout. If any of the conditions are not complied with or in cases where certain works were not carried out, as per layout, the Executive Officer is competent to issue notice and to get the work carried out as per the layout. Under the said Rules, there is no power conferred on the Executive Officer or any authority to cancel the layout once it is sanctioned. If any person is aggrieved by the orders of the Executive Officer, then an approval lies to the Gram Panchayat concerned and further second appeal is provided to the District Panchayat Officer. It is only when the layout is sanctioned basing on misrepresentation or false statements, then permission granted can be revoked under Rule 8 of the Layout Rules. 12. It is also averred that the Building Rules of 1972 were subsequently superseded by G.O.Ms.No.67, dt.26-2-2002. Even under the said Rules, with regard to status of existing Gram Panchayats/previously approved layouts, Rule 13 (1) states that: “… These layout rules shall apply to all existing layouts in the Gram Panchayat areas. Those layouts that have not complied with valid approval or having shortfall in layout development works or open spaces or road widths, etc., as per these rules shall be got regularized first from the Collector, without which no building permission shall be entertained or accorded, the regularization would be based on levy of pro rata charges for shortfall of open spaces, collection of pro rate betterment charges and development charges and improvement of the road pattern and drainage, etc. which has to be borne by the owners of the plots colony, the regularizat6ion would be with reference to a cut of date to be notified separately…” 13. In the light of the above, previously sanctioned layouts by Gram Panchayats cannot be cancelled. It is only the defects or shortcomings, if any, that can be corrected or rectified. 14. Further it is averred that even under Municipalities Act, once permission is granted, except on the ground of misrepresentation or fraud, said permission cannot be cancelled even by the Commissioner, more so without issuing notices to the affected parties. In the instant case, the petitioners herein and several other hundred of innocent persons had purchased plots in the above land with their hard earned money and thereby they became the owners of their respective plots. As such without serving notices on them, by simply issuing notice to one person called Mr.Srinivasa Reddy who seems to have claimed himself as President of Ekashilanagar, said permission is cancelled. In fact, there is no such registered Association and the petitioners herein are not the members of any association. As such the impugned Order passed by the 2nd respondent is without issuing any notice, apart from being contrary to the provisions of the Act and Building bye-laws, besides being violative of principles of natural justice. On this ground alone, the impugned Order is liable to be set aside by this Court. 15. Further it is stated that no reasons are mentioned in the impugned Order as to why or on what grounds the said proceedings are issued. It is not even mentioned in the impugned proceedings that the layout which was sanctioned way back in the year 1985 suffers from any false information or misrepresentation. But merely being on a report seems to have been submitted by the Extension Officer, Ghatkesar, the impugned proceedings seems to have been issued. When notices are not issued to the individual owners, they had no opportunity to submit their explanations and in a routine and mechanical manner, without assigning a single reason for cancellation, the impugned Order had been passed canceling the layout sanctioned in the year 1985, and further directions were issued not to issue any construction permission and for removal of the boundary stones. 16. It is also averred that the Rules mentioned in the impugned G.O.Ms.No.67, dt.26-2-2002 are subsequent to the sanction of the layout and hence the same cannot be made applicable to the petitioners. The Executive Officer of the 4th respondent, who is the competent authority, had sanctioned the layout and basing on the same, property was transferred to various individuals by means of registered sale deeds and the said individual members have become absolute owners of their respective plots, and thereafter, after a period of 21 years, said layout cannot be cancelled without any reason. The Gram Panchayat is the competent authority to cancel or revoke permission if it is obtained on false information or misrepresentation. But surprisingly the 2nd respondent herein, who happens to be the appellate authority under the Rules, cannot cancel the layout sanctioned by the Executive Office of Gram Panchayat, that too without any appeal or representation being filed by an aggrieved party. Exercise of such power by the 2nd respondent is contrary to the provisions of the Act and Rules, inasmuch as with regard to grant of permissions for layouts and constructions, the competent authority is only Gram Panchayat under the scheme of the Act. The District Panchayat Officer is only an appellate authority. But without any basis and without recording any reasons, the impugned Order came to be passed. As such, the same are liable to be set aside by this Court. It is also stated that the petitioner and other petitioners are bona fide purchasers and are in possession of their respective plots and they cannot be deprived of their plots and their right to make constructions, violating Article 300-A of the Constitution of India. In such circumstances, the reliefs specified supra had been prayed for in the present Writ Petition. 17. In the counter affidavit filed by R.4, several of the averments had been specifically denied. It is stated that according to the affidavit filed by the petitioner, the layout in Sy.No.739 to 749 were obtained by the Vendor of the petitioner according to the Rules issued in G.O.Ms.No.377, which were issued under the Andhra Pradesh Gram Panchayat Act, 1964. According to G.O.Ms.No.377, dt.12-10-1973, the Gram Panchayat has to approve the layout after obtaining the technical approval from the Director of the Town Planning. Where there is no technical approval, the layout cannot be treated as an approved layout. According to the petitioner, they say the layout was approved by the Gram Panchayat alone, hence in the absence of the technical approval the said layout cannot be treated as an approved layout. It is also stated that the subsequent permission for construction in the guise of the unapproved layout is also not valid in view of the Rules issued in G.O.Ms.No.377, dt.12-10-1973 and also superceded Rules in G.O.Ms.No.67, dt.26-2-2002. In those circumstances, the 2nd respondent had passed the impugned Order after giving an opportunity to the petitioner by issuing a show-cause notice and also calling for explanation from the petitioner and passed the order on 25-5-2006 directing the 4th respondent herein not to accord the permission in Sy.No.739 to 749 and also specifically instructed that to take action according to G.O.Ms.No.67, dt.26-2-2002. 18. It is further averred that the permission granted by the 4th respondent in the guise of unauthorized layout in the year 1993 is illegal and not according to G.O.Ms.No.377, dt.12-10-1973. It is also pertinent to mention that in the year 1988 the Municipal Administration and Urban Development Department issued notification in G.O.Ms.No.451, dt.20-8-9\88, the Korremulla Gram Panchayat comes under the control of the Urban Development Authority. In view of the same, the powers of the Gram Panchayat relating to the development control which are vested in them transferred to the Urban Development Authority. It is also further stated that in the year 1991, the Municipal Administration and Urban Development delegated certain powers to Gram Panchayat in G.O.Ms.No.408, dt.8-8-91. The developmental activities relating to Gram Panchayat i.e., grant of building permissions for ground plus 2 floors in approved layouts and Residential building permissions in the layout approved by the Urban Development Authority and etc. In view of the above circumstances and also order passed by the 2nd respondent, the Gram Panchayat had not renewed the construction permission for the petitioner. 19. Further it is stated that the District Panchayat Officer has got jurisdiction to pass the order impugned in the present Writ Petition and the so called layout of the petitioner is not valid according to the Rules prescribed in G.O.Ms.No.377, dt.12-10-2002. Further specific stand had been taken that if any person is aggrieved of the orders passed by the Executive Office, an appeal lies to the Gram Panchayat Office and the 2nd appeal to the District Panchayat Officer. Further specific stand had been taken that the Rules issued under G.O.Ms.No.377 had been superceded by G.O.Ms.No.67 aforesaid. Further specific stand had been taken that the impugned Order was passed after thorough enquiry and after giving opportunity to the petitioner. The petitioner had not come forward for submitting his explanation to the show cause notice issued by the 2nd respondent. Hence, now they cannot say that no opportunity was given. 20. Rule 11 of the Rules dealing with “Prior Technical Approval from Director of Town and Country Planning is necessary for certain permissions” reads as hereunder:- (1) The Competent Authority for the Technical Approval – (a) The District Town and Country Planning Officer is the Competent authority to according technical approval for the layouts: (i) In the villages with 10,000 or more population. (ii) In the Urban Centers to be notified separately by the Director of Town and Country Planning. (iii) In all the Mandal headquarters irrespective of the population of the village. (b) The Gram Panchayats of villages with less than 10,000 population are competent to accord sanction for the layouts in their respective villages, wherever the indicative Land Use Plan is prepared for the village by the Town and Country Planning Department, the layouts sanctioned prepared will be conformity with them. (i) in respect of the villages with more than 5,000 and less than 10,000 population the District Town and Country Planning Officer shall prepare Indicative Land Use Plans and keep them available with the respective Gram Panchayats. (ii) In respect of the villages with less than 5,000 population the District Town and Country Planning Officer shall get the Indicative Land Use Plans by engaging the qualified personnel and approve them and keep them available with the respective Gram Panchayats. (2) On receipt of the application for layout approval, the Executive Authority may call for further particulars. If required and necessary. The applicant shall furnish the required particulars within ten days from the date of receipt of the notice by him. The Executive Authority shall thereafter forward the proposals to the District Town and Country Planning Officer wherever necessary, with the layout plan and full particulars within a period of ten days from the date of receipt of particulars from the applicant wherever required. The District Town and Country Planning Officer shall within thirty (30) days after furnishing of all the particulars to them, forward the tentative approved layout to the Executive Officer, Gram Panchayat concerned. The Executive Officer of the Gram Panchayat may submit a report within fifteen days after laying the Water Bound Macadam (WBM) roads by the applicant as per the specifications appended the Annexure-B of these rules. The concerned District Town and Country Planning Department shall inspect the site and approve the layout within fifteen (15) days. If the demarcated tentative layout is in accordance with the tentatively approved layout and in accordance with these rules; and shall communicate the technical clearance for final approval of the layout to the Gram Panchayat concerned for all those falling within above sub-rule (1)(a). (3) The Executive Authority shall within fifteen (15) days of the receipt of the technical approval from the District Town and Country Planning Officer, communicate to the applicant with such conditions and modifications subject to which the layout will be considered for approval indicating the estimated cost of development and the amenities. (4) The applicant shall within ten (10) days after the receipt of communication, communicate to the Executive Authority of the Gram Panchayat his agreement in from prescribed in Annexure-E appended to these rules with an additional non-returnable deposit of the sum equivalent to 5% of the provisional estimated cost of works to be executed by the Gram Panchayat. (5) Applicant can deposit amount in cash or shall give bank guarantee as prescribed in Annexure-D or execute mortgage deed equivalent to estimated cost in the form prescribed in Annexure-F appended to these rules. (6) If a reply is not received from the applicant within 10 days of the receipt of the communication referred to in sub-rules (4) and (5) above, the original application shall be treated as having lapsed. (7) 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. (8) Such sanction may be refused on any of the following grounds namely: (i) application not received in the prescribed form and not accompanied by the documents mentioned in the Rule 3; (ii) if the proposed street or road in the layout does not confirm to the provisions of the Act or the rules made thereunder; (iii) if the proposed street or road is not so planned as to connect at least at one end with a street which is already open; or (iv) if, adequate area has not been set apart for public purposes under Rule 4 (1)(c). NOTE: The Executive Authority shall maintain registers of all layouts, fees and charges collected in prescribed manner. Likewise, Rule 13 dealing with Status of existing Gram Panchayat/previously approved layouts” reads as hereunder:- (1) These layout rules shall apply to all existing layouts in the Gram Panchayat areas. Those layouts that have not complied with valid approval, or having shortfall in layout development works or open spaces or road widths, etc., as per these rules shall be got regularized first from the Collector, without which no building permission shall be entertained or accorded, the regularization would be based on levy of pro rata charges for shortfall of open spaces, collection of pro rata betterment charges and development charges and improvement of the road pattern and drainage etc., which has to be borne by the owners of the plots colony, the regularization would be with reference to a cutoff date to be notified separately. (2) The Executive Authority shall be responsible for identifying and arresting such unauthorized layouts. 21. This Court is not inclined to express any opinion relating to the other merits and demerits. No doubt, elaborate submissions had been made that even in the light of the Rules, the approval of the layout cannot be said to be in accordance with law. Be that as it may, it appears the petitioners who are said to be the purchasers were not put on notice though the original vendors were put on notice. In the light of the facts and circumstances, let the 2nd respondent put the writ petitioners on notice by giving opportunity, receive explanation, if any, in this regard and make appropriate orders in accordance with law. It is needless to say that the impugned Order is hereby set aside and accordingly the Writ Petition is allowed to the extent indicated above. No order as to costs. _____________________ Justice P.S.Narayana 15th December, 2009 smr