REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE/ORIGINAL JURISDICTION
CIVIL APPEAL NO.7935 OF 2011
(Arising out of Special Leave Petition (Civil) No.757 of 2011)
Machavarapu Srinivasa Rao and another ... Appellants
Versus
The Vijayawada, Guntur, Tenali, Mangalagiri
Urban Development Authority and others ... Respondents
With
Contempt Petition (C) No.300 of 2011 in
Civil Appeal No. 7935 of 2011
(Arising out of SLP(C) No.757 of 2011)
J U D G M E N T
G.S. Singhvi, J.
1. Leave granted.
2. The questions which arise for consideration in this appeal are whether
respondent No.1 - the Vijayawada, Guntur, Tenali, Mangalagiri Urban
Development Authority had the jurisdiction to grant permission to respondent No.3
- Sri Venkateswara Swamivari Alaya Nirmana Committee for construction of
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temple at the site of which land use was shown as recreational in the Zonal
Development Plan approved by the State Government and whether the Division
Bench of the High Court of Andhra Pradesh was justified in refusing to nullify the
decision taken by respondent No.1 by assuming that it was only a case of allotment
of site.
3. Respondent No.1 was constituted under Section 3(1) of the Andhra Pradesh
Urban Areas (Development) Act, 1975 (for short, `the Act') to promote and secure
the development of different parts of the four towns, namely, Vijayawada, Guntur,
Tenali and Mangalagiri. In 1978, respondent No.1 acquired 91 acres land at
Chenchupet, Tenali and prepared a layout plan for development. As per the
approved plan, 10 sites were earmarked for parks. These included an area of 75
cents comprised in Town Survey No.2/3, Block No.1, Ward No.1, Chenchupet.
4. The Master Plan of Tenali town was approved by the State Government vide
G.O.Ms. No.969 dated 21.11.1978 and the Master Plan of the urban area of
respondent No.1 was approved vide G.O. Ms. No.144 dated 3.3.1988. After about
15 years, the State Government decided that the Master Plans be replaced by a
comprehensive Zonal Development Plan. For this purpose, the Vice Chairman of
respondent No.1 was authorized to take necessary steps. Thereafter, the area
covered by the urban region of respondent No.1 was divided into 23 planning
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zones and it was decided that Zonal Development Plans be prepared on priority
basis in respect of 15 zones including Tenali zone. The draft Zonal Development
Plan of Tenali was published in the local newspapers and objections/suggestions
were invited from the public. In the final Zonal Development Plan of Tenali town,
which was approved by the State Government vide G.O. Ms. No.689 dated
30.12.2006, land use was divided into the following 9 (main) categories:
"1. Residential use Zone
2. Mixed Residential use Zone.
3. Commercial use Zone [Local, Central and General Commercial
use].
4. Industrial use Zone
5. Public and Semi public use Zone
6. Recreational use Zone.
7. Transportation and Communication use Zone (Roads,
Railways, Airports, Bus Depots and Truck Terminals)
8. Agricultural use zone.
9. Water Bodies."
5. Respondent No.3, which was registered as a society in March, 2009 under
the Andhra Pradesh Societies Registration Act, 2001, submitted an application
dated 28.5.2009 to respondent No.1 for grant of permission to construct a temple at
the site which formed part of Town Survey No.2/3. After considering the
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objections received from the public, respondent No.1 passed resolution dated
4.2.2010 for grant permission to the Residents Welfare Association to construct Sri
Venkateswara Swamy Vari Temple. In furtherance of that decision, Vice-
Chairman of respondent No.1 issued order dated 30.3.2010, the relevant portions
of which, as contained in Annexure P-4 of the SLP paper book, are extracted
below:
"Therefore the `Residential Welfare Association' is permitted to
construct Sri Venkateswara Swamy Vari Temple in the earmarked site
and orders are issued accordingly.
The said `Residential Welfare Association' Alaya Committee is
directed to follow the following conditions:
1. The said Association has no ownership rights on the site earmarked
for Religious center in the IDSMT Scheme. The said Association
has right to construct the temple only. The complete rights on the
site and building shall rest with the UDA only.
3. The Association should not make use of allotted site for other
purposes except for the construction of temple.
4. Temple should be constructed within three years from the date of
issue of this order. Or else the UDA is having every right to take
over the site along with the incomplete building.
5. In the said site activities pertaining to Temple alone should be
conducted and it should not be used for commercial and business
purposes.
6. The meetings and activities of Alaya Committee should be
conducted as per laws.
7. The conditions made by the Government/VGTM UDA from time to
time shall be in force.
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8. If the conditions are violated the said site along with the building
shall be taken over."
After about one month and ten days, the Vice Chairman of respondent No.1
issued amended order dated 10.5.2010 in the name of respondent No.3 because by
mistake permission for construction of temple was issued in favour of the
Residents Welfare Association, which had not even submitted application.
6. Having succeeded in convincing respondent No.1 to grant permission for
construction of temple at the site, which did not even belong to it, respondent No.3
approached the State Government for change of land use from recreational (park)
to public/semi public. Simultaneously, the Vice Chairman of respondent No.1
addressed letter dated 15.6.2010 to the Principal Secretary to Government,
Municipal Administration and Urban Development Department for change of land
use. He pointed out that in the Integrated Development of Small and Medium
Towns Scheme, 1981 (for short, `the 1981 Scheme') 15 cents land comprised in
Town Survey No.2/3 was reserved for religious center but, by mistake the same
was shown as earmarked for recreational use in the Zonal Development Plan.
7. While respondent Nos. 1 and 3 were making efforts for securing an order
from the State Government for change of land use, the appellants filed writ petition
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by way of public interest litigation questioning the decision of respondent No.1 to
sanction construction of temple. They pleaded that the Zonal Development Plan
prepared by respondent No.1 and approved by the State Government is statutory in
character and land covered by the Zonal Development Plan cannot be used for a
purpose other than the one specified in the Plan and respondent No.1 did not have
the jurisdiction to sanction construction of temple at the site of which land use was
shown as recreational (park). In the counter affidavit filed on behalf of respondent
No.1, it was pleaded that mere allotment of land for construction of temple did not
give any cause to the writ petitioners to challenge order dated 30.3.2010 and as and
when an application is made for construction of temple, respondent No.1 will
consider whether land can be used for a purpose other than the one specified in the
Zonal Development Plan. In the affidavit filed on behalf of respondent No.3, it
was pleaded that as per the Zonal Development Plan, land coming under the
Residential Use Zone can be utilized for construction of Kalyana Mandapams
without creating any noise pollution, function halls/public assembly halls, religious
center etc. and in the absence of any bar in the Zonal Development Plan, no
exception can be taken to the permission granted by respondent No.1 for
construction of temple.
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8. The Division Bench of the High Court noticed that as per the approved
Zonal Development Plan, Town Survey No.2/3 is earmarked for recreational use
(park) and held that unless the State Government relaxes the use of land,
respondent No.1 cannot grant permission for construction of temple. However, the
appellants' prayer for quashing order dated 30.3.2010 was declined by making the
following observations:
"Once the land was earmarked for the parks/recreational use in
the modification of the Master Plan of Tenali Town as
approved in G.O.Ms.No.689, dated 30.12.2006, unless the
Government relaxes the use of the land for any other purpose
than the one notified, the first respondent cannot grant
permission for construction of temple if it is prohibited under
G.O.Ms.No.689, dated 30.12.2006. Mere allotment of the land
for construction of temple will not give rise any cause of action
unless permission for construction of temple is accorded by the
first respondent on submitting the plans. As and when the
plans are submitted with specific proposal for construction of
temple, the first respondent is under obligation to consider the
prohibition contained under the modified Master Plan issued in
G.O.Ms.No.689, dated 30.12.2006. It is under obligation to
invite the objections from the residents of the locality including
the petitioners and consider the said objections before granting
permission. If such construction of temple is prohibited, it is
also open for the third respondent to move the Government by
filing an application seeking relaxation of the land use and if
any relaxation is granted by the Government, it can make its
application to the first respondent."
(emphasis supplied)
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9. Learned counsel for the appellants argued that the impugned order is liable
to be set aside because the High Court disposed of the writ petition by erroneously
assuming that order dated 30.3.2010 was only for allotment of land to respondent
No.3. Learned counsel emphasized that in the approved Zonal Development Plan,
land use of Town Survey No.2/3 has been shown as recreational (park) and argued
that respondent No.1 committed a jurisdictional error by sanctioning construction
of temple at the site without even making an effort to find out whether the site
belongs to respondent No.3.
10. Learned counsel for the respondents supported the impugned order and
argued that the permission granted by respondent No. 1 cannot be faulted merely
because land use of the site has not been changed by the State Government.
Learned counsel for respondent No.1 submitted that while preparing the Zonal
Development Plan the competent authority had overlooked the fact that in the 1981
Scheme 15 cents land forming part of Town Survey No.2/3 was reserved for
religious center and this is the reason why the Vice Chairman of respondent No.1
had written to the State Government to rectify the mistake. He then argued that the
appellants do not have the locus to question resolution dated 4.2.2010 and order
dated 30.3.2010 because they did not file objection against the proposed
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construction of temple at the site of which land use has been shown in the Zonal
Development Plan as recreational.
11. We shall first consider whether the High Court was justified in declining
relief to the appellants on the premise that respondent No.1 had merely allotted
land to respondent No.3. In this context, it is apposite to observe that none of the
documents produced before the High Court and this Court show that respondent
No.3 had applied for allotment of land for construction of temple and respondent
No.1 had allotted the site after following some procedure consistent with the
doctrine of equality enshrined in Article 14 of the Constitution. Not only this, a
bare reading of order dated 30.3.2010 leaves no manner of doubt that respondent
No.1 had granted permission to respondent No.3 for construction of temple at the
site in question. There is nothing in the language of that order or the conditions
enshrined therein from which it can be inferred that respondent No.1 had allotted
land to respondent No.3. Therefore, the High Court was clearly in error in
deciding the writ petition by assuming that it was only a case of allotment of land.
12. The next question, which merits consideration is whether respondent No.1
had the jurisdiction to allow construction of temple at the site which was reserved
for recreational use in the Zonal Development Plan. Section 2(e) which contains
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the definition of term "development" and Sections 7, 12(1), (2), (3) and (4) and 15
of the Act, which have bearing on the decision of this question read as under:
"2(e) `development' with its grammatical variations means the
carrying out of all or any of the works contemplated in a master
plan or zonal development plan referred to in this Act, and the
carrying out of building, engineering, mining or other operations
in, on, over or under land, or the making of any material change in
any building or land and includes redevelopment.
Provided that for the purposes of this Act, the following operations
or uses of land shall not be deemed to involve development of the
land that is to say-
(i) the carrying out of any temporary works for the
maintenance, improvement or other alteration of any building,
being works which do not materially affect the external appearance
of the building:
(ii) the carrying out by a local authority of any temporary
works required for the maintenance or improvement of a road, or
works carried out on land within the boundaries of the road;
(iii) the carrying out by a local authority or statutory
undertaking of any temporary works for the purpose of inspecting,
repairing or renewing any sewers, mains, pipes, cables or other
apparatus, including the breaking open of any street or other land
for that purpose:
(iv) the use of any building or other land within the cartilage
purpose incidental to the enjoyment of the dwelling house as such;
and
(v) the use of any land for the purpose of agriculture,
gardening or forestry (including afforestation) and the use for any
purpose specified in this clause of any building occupied together
with the land so used;
7. Zonal development plans: - (1) Simultaneously with the
preparation of Master Plan or as soon as may be thereafter the
Authority shall proceed with the preparation of zonal development
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plan for each of the zones into which the development area may be
divided.
(2) A zonal development plan may,-
(a) contain a site plan and land use plan for the development of the
zone and show the approximate locations and extents of land uses
proposed in the zones for such purposes as roads, housing, schools,
recreation, hospitals, industry, business, markets, public works and
utilities, public buildings, public and private open spaces and other
categories of public and private uses;
(b) xxx xxx xxx
(c) xxx xxx xxx
(d) in particular, contain provisions regarding all or any of the
following matters, namely--
(i) xxx xxx xxx
(ii) the allotment or reservation of lands for roads, open spaces,
gardens, recreation grounds, schools, markets and other public
purposes;
(iii) to (xii) xxx xxx xxx
12. Modifications to plan: - (1) The Authority may make such
modifications to the plan as it thinks fit, being modifications
which, in its opinion, do not effect important alterations in the
character of the plan and which do not relate to the extent of land
uses or the standards of population density.
(2) The Government may suo motu or on a reference from the
Authority make any modifications to the plan, whether such
modifications are of the nature specified in sub-section (1) or
otherwise.
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(3) Before making any modifications to the plan, the Authority or,
as the case may be, the Government shall publish a notice in such
form and manner as may be prescribed inviting objections and
suggestions from any person with respect to the proposed
modifications before such date as may be specified in the notice
and shall consider all objections and suggestions that may be
received by the Authority or the Government.
(4) Every modification made under the provisions of this section
shall be published in such manner as the Authority or the
Government, as the case may be, may specify and the
modifications shall come into operation either on the date of the
publication or on such other date as the Authority or the
Government may fix.
15. Use of the land and buildings in contravention of plans: -
After the coming into operation of any of the plans in a zone, no
person shall use or permit to be used any land or building in that
zone otherwise than in conformity with such plan:
Provided that it shall be lawful to continue to use upon such terms
and conditions as may be determined by regulations made in this
behalf, any land or building for the purpose for which, and to the
extent to which, it is being used on the date on which such plan
comes into force."
13. The definition of the "development" is comprehensive. It takes within its
fold the carrying out of all or any of the works contemplated in a Master Plan or
Zonal Development Plan and the carrying out of building, engineering, mining or
other operations in, on, over or under land, or the making of any material change in
the existing building or land. Redevelopment is also included within the ambit of
the term "development". The proviso to the definition excludes certain works,
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which are of temporary nature. Section 13 of the Act empowers the Government
to declare an urban area or group of urban areas to be a development area for
proper development of such area or areas. Once an urban area or a group of urban
areas is declared to be a development area, the Government is obliged to constitute
an Urban Development Authority under Section 3(1). The Development Authority
is enjoined with the task of promoting and ensuring development of all or any of
the areas comprised in the development area according to the sanctioned plan and
for that purpose, the Authority has the power to acquire, by way of purchase or
otherwise, hold, manage, plan, develop and mortgage or otherwise dispose of land
and other property, to carry out by or on its behalf building, engineering, mining
and other operations, to execute works in connection with supply of water and
electricity, disposal of sewerage and control of pollution, other services and
amenities [Section 5(1)]. Chapter III of the Act contains provisions for preparation
of Master Plan and Zonal Development Plan. Section 7(1) provides for preparation
of Zonal Development Plan for each of the zones into which the development area
may be divided. Section 7(2) enumerates the matter, which may be specified in the
Zonal Development Plan. Clause (a) thereof speaks among other things of land
use plan for the development of the zone and the approximate locations and extents
of land uses proposed in the zones for purposes like roads, housing, schools,
recreation, hospitals, industry, business, markets, public works and utilities, public
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buildings, public and private open spaces and other categories of public and private
uses. Sections 8 and 9 lay down the procedure for preparation and approval of the
Master Plan/Zonal Development Plan. Section 10 lays down that immediately
after approval of Plan by the State Government, the authority shall publish a notice
evidencing such approval and from the date of first publication of notice the Plan
shall come into operation. Section 12(1) empowers the Development Authority to
make appropriate modifications in the plan which do not effect important
alterations in the character of the plan and which do not relate to the extent of land
uses or the standards of population density. Section 12(2) empowers the State
Government to make any modification in the plan either on its own or on a
reference made by the Development Authority. Section 12(3) and (4) lays down
the procedure for making modification of plan which is substantially similar to the
procedure prescribed for preparation of the plan. Section 15 prohibits the use of
land otherwise than in conformity with the plan.
14. An analysis of the above noted provisions shows that once the Master Plan
or the Zonal Development Plan is approved by the State Government, no one
including the State Government/Development Authority can use land for any
purpose other than the one specified therein. There is no provision in the Act
under which the Development Authority can sanction construction of a building
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etc. or use of land for a purpose other than the one specified in the Master
Plan/Zonal Development Plan. The power vested in the Development Authority to
make modification in the development plan is also not unlimited. It cannot make
important alterations in the character of the plan. Such modification can be made
only by the State Government and that too after following the procedure prescribed
under Section 12(3).
15. In the pleadings filed before the High Court, the respondents had not
controverted the assertion made by the appellants that in the approved Zonal
Development Plan, land comprised in Town Survey No.2/3 was earmarked for
recreational use. Therefore, in the absence of change of land use which could have
been sanctioned only by the State Government, respondent No.1 had no
jurisdiction to grant permission to respondent No.3 to construct temple at the site.
Respondent No.1 was very much alive to this legal position and this is the reason
why its Vice Chairman had written letter dated 15.6.2010 to the Principal Secretary
to the Government for change of land use by stating that a mistake had been
committed at the time of preparation of Zonal Development Plan. It is a different
thing that the State Government has not sanctioned change of land use by
modifying the zonal development plan in accordance with the procedure prescribed
under Section 12(3) and (4). In this scenario, there is no escape from the
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conclusion that respondent No.1 could not have entertained the application made
by respondent No.3 and granted permission for construction of temple at the site
reserved for recreational use and that too by ignoring that the same had not been
allotted to respondent No.3 by any public authority. As a corollary, it must be held
that the High Court committed serious error by refusing to quash order dated
30.3.2010 by assuming that it was merely a case of allotment of land.
16. The view taken by us on the legality of order dated 30.3.2010 finds support
from the judgment of this Court in Bangalore Medical Trust v. B.S. Muddappa
(1991) 4 SCC 54. In that case, allotment of land, which was shown as open space
in the sanctioned development plan, for construction of a nursing home was
challenged on the ground that the State Government and the Bangalore
Development Authority did not have the jurisdiction to make such allotment. The
learned Single Judge negatived the challenge but the Division Bench allowed the
appeal and quashed the allotment. The judgment of the Division Bench was
approved by this Court. R.M. Sahai, J., who delivered the main judgment
highlighted the importance of reservation of land for the public park in a
development plan and adversely commented upon use thereof for construction of
nursing home in the following words:
"Public park as a place reserved for beauty and recreation was
developed in 19th and 20th century and is associated with growth of
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the concept of equality and recognition of importance of common
man. Earlier it was a prerogative of the aristocracy and the affluent
either as a result of royal grant or as a place reserved for private
pleasure. Free and healthy air in beautiful surroundings was privilege
of few. But now it is a, `gift from people to themselves'. Its
importance has multiplied with emphasis on environment and
pollution. In modern planning and development it occupies an
important place in social ecology. A private nursing home on the other
hand is essentially a commercial venture, a profit oriented industry.
Service may be its motto but earning is the objective. Its utility may
not be undermined but a park is a necessity not a mere amenity. A
private nursing home cannot be a substitute for a public park. No town
planner would prepare a blueprint without reserving space for it.
Emphasis on open air and greenery has multiplied and the city or town
planning or development Acts of different States require even private
house owners to leave open space in front and back for lawn and fresh
air. In 1984 the B.D. Act itself provided for reservation of not less
than 15 per cent of the total area of the layout in a development
scheme for public parks and playgrounds the sale and disposition of
which is prohibited under Section 38-A of the Act. Absence of open
space and public park, in present day when urbanisation is on
increase, rural exodus is on large scale and congested areas are
coming up rapidly, may give rise to health hazard. May be that it may
be taken care of by a nursing home. But it is axiomatic that prevention
is better than cure. What is lost by removal of a park cannot be gained
by establishment of a nursing home. To say, therefore, that by
conversion of a site reserved for low lying park into a private nursing
home social welfare was being promoted was being oblivious of true
character of the two and their utility."
T.K. Thommen, J., who agreed with R.M. Sahai, J. referred to the provisions of the
Bangalore Development Authority Act, 1976 and observed:
"The scheme is meant for the reasonable accomplishment of the
statutory object which is to promote the orderly development of the
city of Bangalore and adjoining areas and to preserve open spaces by
reserving public parks and playgrounds with a view to protecting the
residents from the ill-effects of urbanisation. It meant for the
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development of the city in a way that maximum space is provided for
the benefit of the public at large for recreation, enjoyment,
`ventilation' and fresh air. This is clear from the Act itself as it
originally stood. The amendments inserting Section 16(1)(d), 38-A
and other provisions are clarificatory of this object. The very purpose
of the BDA, as a statutory authority, is to promote the healthy growth
and development of the city of Bangalore and the areas adjacent
thereto. The legislative intent has always been the promotion and
enhancement of the quality of life by preservation of the character and
desirable aesthetic features of the city. The subsequent amendments
are not a deviation from or alteration of the original legislative intent,
but only an elucidation or affirmation of the same.
Protection of the environment, open spaces for recreation and fresh
air, playgrounds for children, promenade for the residents, and other
conveniences or amenities are matters of great public concern and of
vital interest to be taken care of in a development scheme. It is that
public interest which is sought to be promoted by the Act by
establishing the BDA. The public interest in the reservation and
preservation of open spaces for parks and playgrounds cannot be
sacrificed by leasing or selling such sites to private persons for
conversion to some other user. Any such act would be contrary to the
legislative intent and inconsistent with the statutory requirements.
Furthermore, it would be in direct conflict with the constitutional
mandate to ensure that any State action is inspired by the basic values
of individual freedom and dignity and addressed to the attainment of a
quality of life which makes the guaranteed rights a reality for all the
citizens."
17. The matter deserves to be considered from another angle. It is neither the
pleaded case of respondent No.3 nor any document was produced before the High
Court and none has been produced before this Court to show that 15 cents land
forming part of Town Survey No. 2/3 was allotted to it by any public authority
after following a recognized mode of disposal of public property. It has surprised
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us that even though respondent No.3 was not an owner of the site, it made an
application for grant of permission to construct the temple and functionaries of
respondent No.1 accepted the same without making any inquiry about the title of
respondent No.3. Thus, the illegality committed by respondent No.1 in issuing
order dated 30.3.2010 is writ large on the face of the record.
18. In the result, the appeal is allowed and the impugned order is set aside. As a
corollary, the writ petition filed by the appellants is also allowed and order dated
30.3.2010 as also amended order dated 10.5.2010 issued by respondent No.1 are
quashed. The parties are left to bear their own costs.
19. Since we have allowed the main appeal, the contempt petition filed by the
appellants is disposed of as infructuous.
.............................J.
[G.S. Singhvi]
..............................J.
[H.L. Dattu]
New Delhi
September 19, 2011.
