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CASE NO.: Appeal (civil)  4344 of 2007

PETITIONER: M. Naga Venkata Lakshmi

RESPONDENT: Viskhapatnam Municipal Corp. & Anr

DATE OF JUDGMENT: 18/09/2007

BENCH: S.B. Sinha & Harjit Singh Bedi

JUDGMENT: J U D G M E N T  

CIVIL APPEAL NO.  4344 OF 2007 [Arising out of  SLP (Civil) No. 5139 of 2005]

S.B. SINHA, J :          1.      Leave granted.

2.      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 Layout.   

3.      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:

"The 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

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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 space."

4.      A writ appeal preferred thereagainst by the appellant has been  dismissed by reason of the impugned judgment.

       Appellant is, thus, before us.

5.      The 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.

6.      The 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.   Before 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.

7.      On what basis the layout plan had been drawn resulting in deprivation  of a valuable right of the appellant, therefore, was required to be determined.   Furthermore, 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.   

8.      We 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] held:

"58.    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."       

9.      Prima facie, it appears that there is no provision in terms whereof the

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appellant could be deprived of her right of property without payment of any  compensation.

10.     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.  

11.     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.

12.     The appeal is disposed of with the aforementioned observations.  No  costs.