Venkata Lakshmi Vs. Viskhapatnam Municipal Corp. & Anr  Insc 948 (18 September 2007)
Sinha & Harjit Singh Bedi
APPEAL NO. 4344 OF 2007 [Arising out of SLP (Civil) No. 5139 of 2005] S.B.
SINHA, J :
Appellant herein purchased about 167 sq. yard of vacant land in plot No.
C/1&2, R.S. No. 52(P) situate at Balayya Sastry's layout, Sitammadhara, Alipuram
Extension Ward, Visakhapatnam by reason of a deed of sale dated 8.07.1982. The
said layout was not an approved one. The Competent Authority to approve the
layout plan was the Visakhapatnam Urban Development Authority (VUDA) created
under the Andhra Pradesh Urban Areas (Development) Act, 1975 (for short
"the Act"). A revised plan was prepared in the year 1989. The name of
locality was changed to Radha Krishna Nagar. Plots belonging to others had been
regularized but the appellant's plot was not. A representation was made by her
to VUDA but she did not receive any response thereto. Appellant also filed an
application for sanction of a building plan before the Visakkhapatnam Municipal
Corporation. The said application was dismissed on the premise that the
proposed constructions fell on the reserved open space in the Radha Krishna Nagar
Questioning the legality of the said purported order, a writ application was
filed by her. The same was dismissed by a learned Single Judge of the Andhra
Pradesh High Court by an order dated 22.01.2004 stating:
relief prayed for by the petitioner to direct the respondents to regularize the
plot purchased by her in the unapproved layout, which is shown as reserved open
space in the approved layout, cannot be granted. The petitioner knowing fully
well that the Balayya Sastri layout is not approved, yet risked her monies to
purchase a plot in the said layout. According to the own admission of the
petitioner, she had purchased the plot in the unapproved layout known as Balayya
Sastri, under a registered sale deed from her vendor. When, according to the
own admission of the petitioner, she had purchased the plot in the unapproved
layout, which was subsequently transformed into an approved layout known as Radha
Krishna Nagar, it is not open for her to contend that respondent no. 1 ought
not to have refused permission for construction of building in the said plot on
the ground that the plot purchased by the petitioner in the approved layout, is
shown as reserved open space. It is required to be noted that reserved open
space are normally earmarked for providing lung space to the inhabitants of a
colony, and it would not be in the interest of general public to accord
permission for construction of building therein contrary to the layout. The Apex Court as well as this Court have been
consistently holding that reserved open spaces should be made use of for the
purposes for which they have been earmarked, and no construction which is
destined to defeat the very purpose of providing lung spaces, should be allowed
to be made. Inasmuch as in the approved layout, the plot purchased by the petitioner
was shown as reserved open space, respondent no. 1 had refused to grant
permission to construct a building therein, and no exception can be taken
thereto. Respondent no. 1 has no obligation, and for that matter, he cannot be
directed to grant permission to the petitioner for construction of building in
the plot, which admittedly in the approved layout is shown as reserved open
writ appeal preferred thereagainst by the appellant has been dismissed by
reason of the impugned judgment.
is, thus, before us.
Act was enacted for the development of urban areas in the State of Andhra Pradesh according to plan and for matters
connected therewith and ancillary thereto. Chapter II of the Act provides for
constitution of the Urban Development Authority and their objects. Chapter III
provides for preparation of Master Plan and Zonal Development Plan. Chapter IV
provides for development of lands whereas Chapter V provides for acquisition
and disposal of land.
legality and/ or validity of the deed of sale executed by vendor in favour of
the appellant is not in dispute. It is also not in dispute that no layout plan
existed in the area in question where she had purchased the land.
making the Zonal Plan and the Master Plan, the Authority was required to give
an opportunity of hearing to the persons who may be affected thereby. Neither
the writ court nor the court of appeal dealt with the question as regards the
right of the appellant to be heard in the matter. If the allegations made in
the writ petition were correct, we do not know why the fact that her land had
been earmarked for the purpose of providing an open space to the other owners
of the said layout had not been disclosed to her.
what basis the layout plan had been drawn resulting in deprivation of a
valuable right of the appellant, therefore, was required to be determined.
if VUDA wanted to deprive the appellant from a valuable right of property, the
question which should have been posed was as to whether therefor the
authorities should have acquired the property or not.
may notice that recently a Bench of this Court in Chairman, Indore Vikas Pradhikaran
v. M/s. Pure Industrial Cock & Chem. Ltd. & Ors. [2007 (8) SCALE 110]
Property, while ceasing to be a fundamental right would, however, be given
express recognition as a legal right, provisions being made that no person
shall be deprived of his property save in accordance with law."
Prima facie, it appears that there is no provision in terms whereof the
appellant could be deprived of her right of property without payment of any
We, therefore, are of the opinion that the impugned judgments cannot be
sustained which are set aside accordingly and the matter is remitted to the
learned Single Judge of the High Court for consideration of the matter afresh.
Before us, VUDA has not appeared. We, therefore, direct to place all the
relevant records before the High Court. Parties shall be entitled to file their
additional affidavits and raise all contentions before it which may be
considered on their own merit.
The appeal is disposed of with the aforementioned observations. No costs.
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