Allowed

Kadiyam Shiva Kumar v. The State of Andhra Pradesh

Andhra Pradesh HC6 Feb 2024WP(PIL)/228/2021

Case brief

AI extract

What is this about?

In a PIL, the High Court set aside a Government Order allowing alienation of reserved park land in Nellore to a private individual. The court held the alienation violated the Municipalities Act, a 2002 G.O., and Apex Court precedents prohibiting disposal of reserved open spaces. The petitioner was directed to receive the market value amount paid by the allottee.

What did the court decide?

G.O.Rt.No.38 dated 05.01.2009 set aside; petitioner entitled to market value amount paid by respondent No.3.

Kadiyam Shiva Kumar Vs The State of Andhra Pradesh — Land Acquisition | Andhra Pradesh HC (2024)

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IN THE HIGH COURT OF ANDHRA PRADESH :: AMARAVATI

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(Special Original Jurisdiction)

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WEDNESDAY, THE SEVENTH DAY OF FEBRUARY TWO THOUSAND AND TWENTY FOUR

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PRESENT

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HONOURABLE SRI JUSTICE DHIRAJ SINGH THAKUR, CHIEF JUSTICE

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AND

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HONOURABLE SRI JUSTICE R RAGHUNANDAN RAO

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WP(PIL) NO: 228 OF 2021

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Between:

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Kadiyam Shiva Kumar, S/o. Thriupalaiah, Aged about 35 years, Occ. Private Employee, R/o. D.No.16-4-1759-1 4th Street, Old Nursing College, Haranadhapuram, Nellore, SPSR Nellore District, Mobile Number - 9440425241, Aadhar Number - 644326864981, PAN Number - CBJPK2028N

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... Petitioner

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AND

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The State of Andhra Pradesh,, Rep. by Principal Secretary Municipal Administration and Urban Development, Secretariat, Velagapudi, Amaravathi, Guntur District

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The Nellore Municipal Corporation,, Rep. by its Commissioner, Nellore, SPSR Nellore District.

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Sri B.Srihari Reddy,, S/o. Late Mastan Reddy, Aged about 79 years Occ. Real Estate Business, R/o. H.No.16/2741, 1st Lane,

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Ramalingapuram, SPSR Nellore District.

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... Respondents

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\ Petition under Article 226 of the Constitution of India praying that in • the circumstances stated in the affidavit filed therewith, the High Court may - be pleased to issue ,a writ, order or direction more^{particularlyoneinthe} nature of Writ of Mandamus, declaring the action of the respondents t and 2 alienating the public park in an extent admeasuring Ac.0.44 cts at Sy.No.675/1, Nellore, Nellore District on the guise of GORT.No.32, Municipal Administration and Urban Development(WI)^{Department,dated.} 05.01.2009 is illegal, arbitrary, violation of GOMS.No.72,^MAandUD{G1) Department, dated. 20.07.2002 and settled principles laid down by the Hoh'ble Apex Court as well as this Hon'ble Court and^{violationofArticle19} and 21 of Constitution of India and the Rules framed thereunder and consequently set-aside the GORT.No.32, Municipal Administration and Urban Development(WI) Department, dated. 05.01.2009^{andfurtherdirect} the respondents not to alienate the park land in an^{extentofAc.0.44ctsat} Sy.No.675n, Nellore, Nellore District.

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lA NO: 1 OF 2024

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Petition under Section 151 CPC praying that in the^{circumstances} stated in the affidavit filed in support of the petition, the High Court may be pleased to grant leave to the petitioner/ respondent^{No.2intheWP(PIL)} 228 of 2021 to file the counter affidavit in the above writ petition.

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lA NO: 2 OF 2021

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Petition under Section 151 CPC praying that in the^{circumstances} stated in the affidavit filed in support of the petition, the High Court may be pleased to suspend the operation of the GORT.No.32, Municipal Administration and Urban Development(WI) Department, dated. 05.01.2009.

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lA NO: 1 OF 2021

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Petition under Section 151 CPC praying that in the^{circumstances} stated in the affidavit filed in support of the petition, the High Court may be pleased to direct the respondents not to alienate the park land in an extent of Ac.0.44 cts at Sy.No.675/1, Nellore, Nellore District.

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lA NO: 1 OF 2022

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Between:

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Sri B.Srihari Reddy,, S/o. Late Mastan Reddy, Aged about 79 years, Occ. Real Estate Business, R/o. H.No.16/2741, 1st Lane, Ramalingapuram, SPSR Nellore District.

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... Petitioner/Respondent No.3

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AND

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Kadiyam Shiva Kumar, S/o. Thriupalaiah, Aged about 35 years, Occ. Private Employee, R/o. D.No. 16-4-1759-1, 4th Street, Old Nursing College, Haranadhapuram, Nellore, SPSR Nellore District, Mobile Number - 9440425241, Aadhar Number - 644326864981, PAN Number - CBJPK2028N

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...Respondent/Writ Petitioner

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The State of Andhra Pradesh,, Rep. by Principal Secretary Municipal Administration and Urban Development, Secretariat, Velagapudi, Amaravathi, Guntur District

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The Nellore Municipal Corporation,, Rep. by its Commissioner, Nellore, SPSR Nellore District.

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... Respondents/ Respondents

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Petition under Section 151 CPC praying that in the^{circumstances} stated in the affidavit filed in support of the petition, the High Court may be pleased to vacate the interim stay granted in WP(PIL).No.228^of2021dated 18-11-2021.

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Counsel for the Petitioner(s): SRI HARINATH REDDY SOMA Counsel for the Respondent No.1 : GP FOR MUNCIPAL ADMN^URBAN DEV

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Counsel for the Respondent No.2 : SRI SURESH KUMAR^REDDY KALAVA, SC FOR MUNICIPAL CORPORATION

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Counsel for the Respondent No.3 : M/S O.M.R. LAW FIRM

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The Court made the following: ORDER

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m THE HIGH COURT OP ANDHRA PRADESH: AMARAVATI

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HON’BLE MR.cTUSTIGE DHIRAJ SINGH THAEUR, CHIEF JUSTICE

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HON’BLE MR. JUSTICE R. RAGHUNANDAN RAO

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WRIT PETITION rPIL^ No.888 of 8081

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Kadiyam Sliiva Kumar, S/o Thriupalaiali, Aged about 35 years, 0cc:Private Employee, R/o D.No. 16-4-1759-1, Street, Old Nursing GoUege, Haranadhapuram, Nellore, SPSR Nellore District.

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... Petitioner

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Versus

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The State of Andhra Pradesh, Rep. by Principal Secretary, Municipal Administration and Urban Development, Secretariat, Velagapudi, Amaravati, Gimtur District &? two others.

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...Respondents

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Mr.Harinath Reddy Soma, Counsel for the petitioner.

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Government Pleader for Municipal Administration and^Urban Development, Counsel for respondent No. 1.

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Mr. Kalava Suresh Kumar Reddy, Standing Counsel for^respondent No.2.

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M/s O.M.R. Law Firm, for respondent No.3.

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DATE : 07.0S.20S4

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PER DHIRAJ SINGH THAKUR, GJ COral^:

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The present petition has been filed in pubhc interest challenging G.0.Rt.No.3S, dated 05.01.2009, whereby the

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2 HCJ a RRR, J W.P(PIL) No.228 of 2021

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Government accepted the recommendations of the Municipal Council, Nellore, for allotmeiit of land measuring forty fom? cents in favour of Sri B. Srihari Reddy - respondent No.3 herein at prevailing market value, which was to be fixed by the District Collector, Nellore.

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The case of the petitioner is that the aforementioned plot of land was part of a layout plan, which was approved by the Nellore Municipal Corporation and was to be maintained as a park for user by the residents. A registered Gift Deed was stated to have been executed to the extent of forty four cents in favour of the Municipal Corporation, Nellore. It is stated that ever since the said area was being used by the residents in the colony as a park. In the aforementioned background, it is stated that representation^came to be filed by/on behalf of respondent No.3 for allotment^ofthe aforementioned plot of land measuring forty four cents and being used as a park, on prevailing market value. The Nellore Mimicipal Corporation, accordingly, made a favourable recommendation to the Government, which accepted the same and issued G.O.Rt.No.32, dated 05.01.2009, approving the ahenation of the subject^landon prevailing market value.

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Learned counsel for the petitioner would submit that according to Section 184(2)(b) of the Andhra Pradesh

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«CJ 6 RRR, J 3 W.P(PIL) No.228 of 2021

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Municipalities Act, 1965, it is mandatory for the owners^oftheland to keep an adequate area ia the layout for park and puhhc spaces and that there is a prohibition on the Municipahty^nottoconvert the puhhc spaces so set apart for any commercial or other purposes. It is also stated that the G.O. impugned was contrary to the pohcy of the Government itself as reflected in G.O.Ms.No.YS, dated 20.02.2002, in which it was mandated that:

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“ the State shall not propose to utihse the reserved open spaces of a layout for the purpose other than^the intended original use such as a park, play ground, community structure, urban forestry and similar eco-conservation programme. Ahenation proposals in respect of Municipal vacant lands if any available which are other than the reserved open spaces can be proposed for remunerative purposes like shopping/office complexes etc.”

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The G.O. impugned is also stated to be contrary to the judgment of the Apex Court in the case of Bangalore^MedicalTrust V. B.S. Muddappa and others^ and Dr. G. N. Khajuria^andothersv. Delhi Development Authority^. In the case of Bangalore^Medical Trust (supra), the Apex Court was considering the legahty^ofthe orders of the State Government and the resolution of the Bangalore Development Authority in allottmg an open space meant^fora park for user to a Medical Trust for purposes of constructing a Hospital.

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"(1991) 4 see 54

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^(1995) 5 see 762

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HCJ a RRR, J W.P{PIL) No.228 of 2021

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The orders were challenged by the residents of the locality on the ground that it was contrary to the provisions of the Bangalore Development Authority Act, 1976, and the scheme sanctioned thereunder and also the legislative intent for protection and preservation of the environment. In those circumstances, the Apex

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Court held:

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36 ■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 hack 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.^Absenceof 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 given rise to health hazard. ”

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In his concurring judgment, Hon’ble Justice T.K. Thommen

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held:

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“24. Protection of the environment, open spaces for recreation and fresh air, play gpo-unds 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 play gro-unds cannot be sacrhiced by leasing or selling^such

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HCJ a RRR, J W.P(PIL) No.228 of 2021

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sites to private persons for conversion to some other^user. Any such act would he 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^basicvalues 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.

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Reservation of open spaces for parks and play groimds^is universally recognised as a legitimate exercise of statutory power rationally related to the protection of the residents^of the locality from the iU-effects of urbanisation.

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28 .A duly approved scheme prepared in accordance with the provisions of the Act is a legitimate attempt on the part of the Government and the statutory authorities to ensure a quiet place free of dust and^dinwhere children can run about and the aged and the infirm can rest, breath fresh air and enjoy the beauty of nature. These provisions are meant to guarantee a quiet and healthy atmosphere to suit family needs of persons of all stations. Any action which tends to defeat that object is invalid ”

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Similarly, in the case of Dr. G. .N Khajuriaisu.'gva.'), the Apex Court held that the land, which was allotted for estahhshing a nursing school, was a part of a park and therefore^heldthatthe allotment so made was an act of misuse of power.

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Learned counsel for respondent Wo.3, at the very outset, stated that he would have no objection if the impugned^G.O.issued in his favoin* was set aside in view of the ratio of the judgments

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6 HCJ a RRR, J W.P(PIL) No.228 of 2021

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discussed, hereinabove, however, made a prayer that appropriate directions be issued to the Municipal Corporation, Nellore, to refund to respondent No.3, the amount of approximately Rs.3.56^crores along with interest that has accrued thereupon.

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Learned Government Pleader, however, made no effort to justil^^ the G.O. impugned in the present petition.

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Considering the fact that the subject plot of land measiming forty four cents was approved in the layout plan to be used as a park and considering the fact that the residents of the colony had been using it as such, it was not open to the Municipal Corporation, NeUore, and for that matter the Government to aUenate the land on market value basis, which, was contrary not only to G.O.Ms.No.72, dated 20.02.2002, but also the judgments of the Apex Court discussed hereinabove, which prohibited such a conversion or alienation.

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Be that as it may, the G.O. impugned, dated 03.01.2009,^is accordingly set aside. The amount which might have been paid by respondent No.3 to the Municipal Corporation, Nellore; as reflecting the market value of the land in question shall be paid to respondent No. 3. Insofar as the interest element is concerned, we leave

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HCJ a RRR, J W.P(PIL) No.228 of 2021

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respondent No.3 free to work out Ms remedies in that regard before

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an appropriate forum.

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The Writ Petition is, accordingly, disposed of. No order as to

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costs.

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Pending miscellaneous apphcations, if any, shall stand^closed.

SDI- K. TATA RAO

DEPUTY REGISTRAR

//TRUE COPY//

SECTION OFFICER

To,

The Principal Secretary Municipal Administration and Urban Develophient, State of Andhra Pradesh, Secretariat, Velagapudi, Amaravathi, Guntur District

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