IN THE HIGH COURT OF ANDHRA PRADESH : AMARAVATI

HON'BLE MR. JUSTICE PRASHANT KUMAR MISHRA, CHIEF JUSTICE

A N D

HON'BLE MR. JUSTICE M. SATYANARAYANA MURTHY

W.A.No.568 of 2021

(Proceedings through physical mode)

The State of Andhra Pradesh, Rep. by its Principal Secretary to Government, Municipal Administration Department, A.P. Secretariat, Velagapudi, Amaravathi, Guntur District

.. Appellant/respondent No.1

Versus

Thota Subba Rao, S/o Late Narasimha Murthy, D.No.14-208, Opp. Lorry Stand, Pidimgoyyi, Hukumpet, Rajahmahendravaram, East Godavari District and 8 others.

.. Respondents

Counsel for the Appellant	:	Learned Government Pleader for<br>Municipal Administration and<br>Urban Development.
Counsel for respondent No.1	:	S.Sreeramachandra Murthy
Counsel for respondent No.9	:	M.S.R.Sashi Bhushan

ORAL JUDGMENT

Dt.05.01.2022

(Per M.Satyanarayana Murthy, J)

Aggrieved by the order dated 10.12.2020 passed in W.P.No.6381 of 2019 by the learned single Judge, State preferred this appeal under Clause 15 of Letters Patent raising several contentions.

The parties to the appeal will hereinafter be referred as arrayed before the learned single Judge for the sake of convenience and to avoid confusion.

One Thota Subba Rao and 5 others filed the writ petition for issue of Writ of Mandamus declaring the action of the respondents in altering the approved master plan of the pidimgoyyi panchayat in respect of the 80 feet proposed road by publishing the altered plan by issuing notice dated 20.07.2018 without considering the objections of the petitioners and others, by which all the residents of the locality will be affected by demolition of the residential houses industrial units and shops etc., as illegal, arbitrary, violative of the constitutional provisions particularly Article 300-A and 21 of the Constitution of India and the provisions of A.P. Urban Areas Development Act and consequently direct the authorities to follow the master plan of the panchayat as was initially approved by the respondent authorities while laying the proposed 80 feet road.

The petitioners are the residents of Pidimgoyyi village, own houses and small scale industries at Pidimgoyyi village in the site proposed for road widening. They were granted permissions by the Panchayat long back considering the master plan only. Thus, all the petitioners along with others, who are 28 families, are the effected persons on account of the action of respondent No.1.

The Municipal Corporation of Rajamahendravaram was earlier a municipality, now upgraded as Municipal Corporation by merging several panchayats including the Pidimgoyyi panchayat in which the property of the petitioners was located. Respondent Nos.2 and 3 had an idea of developing the city but not in accordance with law and have been acting at the behest of a few disgruntled and selfish elements, due to which common men like the petitioners are facing major life threatening problems. The original master plan of Pidimgoyyi Grampanchayat clearly show the 100 feet road between Survey

numbers 330 and 333 from east-west and the 80 feet proposed road as shown in the master plan from south to north joins the 100 feet road through Morampudi junction. There exists a 200 feet road junction known as Morampudi junction at S.No.332 in Pidimgoyyi, which is not far away from the point where the proposed 80 feet road joins the 100 feet Morampudi junction road. In fact, it is about 100 mts. Further, on the western side of Morampudi junction, there exists a similar situation of a 40 feet road joining the Morampudi road and with another 60 feet road on the other side of the Morampudi road. But that was not made into a 4 road junction as the 200 feet national high way at Morampudi junction is not far away. Thus, the idea of making the proposed 80 feet road joining another 80 feet road from north to south at the Morampudi junction road is unnecessary, illegal, arbitrary and also at the cost of a colony and houses of the petitioners, small scale industries and shops, which is not permissible and appreciable. Thus, the action of altering the 80 feet road design of the master plan only to make the four road junction is unnecessary. Taking into consideration the original approved master plan of the Pidimgoyyi panchayat, the surrounding colonies were developed and all houses, industries and shops were sanctioned considering the original master plan of the panchayat. The petitioners built houses and established small scale industries and living on the income derived from such business in that area and about 28 families are residing there on no alteration basis, for decades together in accordance with the master plan of the panchayat. As a matter of fact, the principle of legitimate expectation of the petitioners is to protect them from the illegal action of the respondents.

The original master plan of the panchayat which included the schedule area was approved by the government in the assembly and with the consent of the Governor. When the panchayat was formed several decades back, though the merger took place recently, any alteration to the master plan of the panchayat has to be made by following the entire process by which the original master plan of the panchayat was made and not by a casual process of alteration of the plan of corporation. Unless the Urban development authority issued a prior notification under Section 13 of the A.P.Urban Areas (Development) Act specifically naming the disputed area as a development area, no alterations to the original master plan of the Pidimgoyyi as approved by the corporation and GUDA could take place. As per the provisions of the A.P.Urban Areas (Development) Act, the previously approved master plan of the panchayat is deemed to have been approved by the corporation and the government on the day the merger took place and in fact, the government issued orders by which the master plan of the panchayat was approved.

In the present case the procedure for alteration was also not followed. There was no specific notification issued by the GUDA till date under Section 13 of the Andhra Pradesh Metropolitan Region and Urban Development Authorities Act, 2016 (for short "APMRUDA Act, 2016") and thus the only notice of the GUDA calling for objections is wholly illegal. Further, as the master plan of Pidimgoyyi panchayat was specifically approved by the respondents earlier, any alterations within a span of a year is highly irregular, illegal and arbitrary. To the notice of GUDA dated 20.07.2018, the petitioners submitted their objections through a representation dated 23.07.2018. But, however the objections of the petitioners and others

were not considered. Hence, the paper notification calling for objections remains as an empty formality, thereby violated the principles of natural justice and fair play. Thus, the entire process of alteration is illegal and vitiated by arbitrariness and unfair approach. Further, the present aspect of necessity to form such road by altering master plan at the cost of petitioners' lives was not considered by the concerned authority despite objections.

Respondent No.4 is only a power of attorney holder of vacant land through which the proposed 80 feet road passes and thus he desperately wanted his vacant land to be preserved and unaffected in the event of formation of the disputed 80 feet road as per the original master plan. Thus, the authorities in order to save the property of one individual resorted to such action of demolishing the houses of several individuals, which will have serious impact on their lives, issued the notification under challenge.

It is further contended that the division bench of Madras High Court held that "the government's power to de-reserve the land is not available after the layout plan is approved, except as per provisions of Section 90, which confers power on the government only in respect of legality or correctness of the layout plan and not in respect of power to change the usage of the land as shown in the layout." Thus, if the issue relating to variation of a lay out plan itself is rejected, the question of demolishing the houses and industries for the purpose of alteration of the master plan, once approved by the corporation and government cannot be accepted in any manner, particularly in the present case, there exists a vacant land in accordance with the master plan through which the disputed 80 feet road could be conveniently formed reaching the 100 feet road of Morampudi

junction. Thus, the whole action of the respondents is illogical, perverse, arbitrary and illegal, requested to declare the action of respondent No.1 is illegal and arbitrary.

Respondent No.1 in the writ petition filed counter-affidavit denying the material allegations inter alia contending that the Pidimgoyyi Grampanchayat is included in the master plan of the Rajamahendravaram. The 100 feet road is passing from East – West between SY.Nos.330 and 333 and the proposed 80 feet road as shown in the master plan is passing from South to North and joining the NH 16 road. There exists 200 feet road junction known as Morampudi junction towards Eastern side.

It is further contended that the Pidimgoyyi Grampanchayat was not merged in to the Corporation in the year 2017. The master plan to Rajamahendravaram Town is sanctioned vide G.O.Ms.No.465, dated 28.10.1975. Subsequently, in the year of 2017, the Rajamahendravaram Municipal Corporation has taken up revision of master plan, after following due procedure i.e., publication of draft master plan, finalization of objections and suggestions, incorporation of valid objections in the draft Master plan etc., the Government vide G.O.Ms.No.289, dated 26.07.2017 have sanctioned revised Master plan of Rajamahendravaram Municipal Corporation with 13 vicinity villages. So, the master plan to Rajamahendravaram Town sanctioned vide G.O.Ms.No.465, dated 28.10.1975 was in force till the master plan is revised vide G.O.Ms.No.289, dt.26-07-2017. While approving the master plan, Government have directed the Commissioner, Rajamahendravaram Municipal Corporation to display a copy of Master plan in the Municipal office and in concerned

Grampanchayats for a period of 6 months for inspection and public notice as per the provisions of APMRUDA Act, 2016.

The 80 feet wide Master Plan road under reference is in continuous alignment as per the old Master Plan, whereas in the new sanctioned master plan, the alignment has been shifted towards west at the meeting point of 100 feet wide Morampudi road breaking the continuous alignment of 80 feet wide road under reference beyond the 100 feet wide Morampudi road, which also makes a staggered junction. One M.Bharath Ram (respondent No.4) has requested the Government to retain the alignment of 80 feet wide proposed master plan road as per the old master plan. Government while disposing the representation of respondent No.4 directed the Commissioner, Rajamahendravarm Corporation and Director of Town and Country Planning, Andhra Pradesh, Guntur to re-examine the request of realignment of 80 feet wide Road.

It is further contended that again respondent No.4 vide representation dated 21.08.2017 has requested the Government MA&UD Department to consider the re-alignment of 80 feet wide master plan road as four road junction instead of staggered junction at his site in the new master plan. As per the instructions of the Government, the Director of Town and Country Planning, A.P, Guntur and the Commissioner, Rajamahendravaram Municipal Corporation have re-examined the request of respondent No.4 and submitted the proposals to the Government with recommendations. With a view to guide the future development in and around the Urban areas, master plans are being prepared for the Urban Local Bodies, Urban Development Authorities and Metropolitan Region Development Authorities in the State with a validity of 20 years period as per the

Andhra Pradesh Town Planning Act, 1920 and APMRUDA Act, 2016. In the meanwhile, if any modifications/rectifications (Change of Land uses) are required to the approved Master Plans, Government is the competent authority to do so, duly following the procedure prescribed in the relevant acts. The modifications/rectifications (Change of Land uses) are being approved in accordance with the provisions contained in APMRUDA Act, 2016 in case of Metropolitan Region Development Authorities and Urban Development Authorities" and in accordance with the provisions contained under Section 15 of A.P. Town Planning Act, 1920 in case of Urban Local Bodies" (outside the jurisdiction of Urban Development Authorities).

It is further contended that after obtaining the report from Director of Town & Country Planning/ Vice Chairperson, Godavari Urban Development Authority, Government have examined the request of respondent No.4 based on ground report of the Director of Town & Country Planning and agreed for realignment to avoid staggered junction proposed in the new Master Plan at the point where this proposed 80 feet wide road crossing 100 feet wide Morampudi road subject to condition that Vice Chairperson, Godavari Urban Development Authority (respondent No.2) shall call for objections and suggestions as per APMRUDA Act, 2016. The Vice Chairperson, Godavari Urban Development Authority (respondent No.2) informed the decision vide Government letter dated 24.10.2017.

The Vice Chairperson, Godavari Urban Development Authority (respondent No.2) has prepared the GTP map showing the realignment and issued a notice calling for objections and suggestions from the general public on the proposed realignment of master plan

road in the news papers in Deccan Chronicle and Eenadu Daily News Papers on 21.07.2018. In response, one mahajar petition by B. Tirupathi Rao and 26 others was received from the owners of the buildings in Sy.No.328 of Pidimgoyyi Gram Panchayat.

It is further contended that the petitioners have submitted the objection for the proposed realignment of 80 feet proposed Master Plan road duly stating that their buildings will effect in the proposed realignment of the said 80 feet wide Master Plan road and also informed that they have constructed buildings after obtaining building permissions from the Pidimgoyyi Gram Panchayat. In this regard, while furnishing report on the objections, the Vice Chairperson, Godavari Urban Development Authority has stated that as per the state of things on ground only two R.C.C. roof buildings and one temporary A.C. sheet roof shed are getting affected due to the proposed realignment, whereas all the owners of the buildings i.e., owners of 26 buildings have signed on the mahajar petition. Further, the affected building owners i.e., Thota Subba Rao and Molli Thammayya have obtained building permissions from the Panchayat Secretary, Pidimgoyyi Gram Panchayat vide BLR No.66/87-88, dated 30.12.1987 and BLR No.49/2004-05, dated 08.07.2004 respectively. The said two buildings are falling in the alignment of 80 feet wide Master Plan road according to the old Master Plan. Hence approval of building permissions in the alignment of Master plan roads is against the rules. Further it is to submit that, the 80 feet wide Master Plan road under reference as per the old Master Plan is in continuous alignment, whereas in the new sanctioned Master Plan, the alignment has been shifted towards west, breaking the continuous alignment of

80 feet wide Master Plan road under reference beyond the 100 feet wide Morampudi road which also makes a staggered junction.

From the planning point of view, to facilitate free flow of traffic in the area duly avoiding staggered junction, the Government agreed for the re-alignment overriding the objections as per the section 15(3) of the APMRUDA Act, 2016 and notified the draft variation of the proposed realignment of 80 feet wide road and the same was published in AP Extraordinary Gazette No.819, Part-1, dated 04.12.2018 and as per Section 15(4) of the APMRUDA Act, 2016, confirmed the draft variation and issued orders vide G.O.Ms.No.411, MA&UD(H2) Department, Dated 20.12.2018 effecting the realignment of 80 feet wide road.

It is further contended that though Pidimgoyyi Gram Panchayat is beyond the Rajahmahendravaram Municipal Corporation Limits, the Master Plan was prepared covering even the areas falling outside the Corporation limits so as to guide the development in the immediate peripheral areas of the Rajahmundry Municipal Corporation. Since Pidimgoyyi Gram Panchayat, included in the Master Plan limits (though it is not included in the Municipal Corporation limits), it attracts all Zoning Regulations prescribed in the Master Plan. Accordingly, Government have considered slight realignment of 80 feet wide master plan road under reference duly following the procedure prescribed in the APMRUDA Act, 2016.

It is further contended that the action taken by the respondents in re-aligning the proposed 80 feet road in the master plan of the Rajamahendravaram Municipal Corporation is as per the provisions of the APMR&UDA Act and rules framed there under. The realignment made will serve better purpose from Town Planning point of view and ease the traffic flow in the area duly avoiding staggered junction, requested to dismiss the writ petition.

Respondent No.2 filed separate counter reiterating the contentions raised by respondent No.1 and specifically contended that the Government vide Lr.No.749516/H1/2017, dated 08.11.2017 has informed respondent No.1 to discuss/explain the subject matter with the Minister for Municipal Administration along with details realignment road plans). The subject was discussed and the following further information on the subject was submitted to Government vide Lr.Roc.No.122/2017 GUDA, dated 23.11.2018 of the respondent No.2. Draft variation schedule of boundaries of the proposed re-alignment of 80 feet wide in master plan road in Sy.No.328 of Pidimgoyyi village and Gram Panchayat, Rajamahendravaram Rural Mandal in the Master Plan of Rajamahendravaram.

Schedule of Boundaries of the Proposed Re-alignment of 80 feet wide road

• North: Existing 57'-0" wide Morampudi Road (Proposed to widen as 100 feet as per Master plan.
• East: Sites belongs to Sri M.Naga Raju, Sri Thota Subba Rao, Smt.K.Lakshmi, Sri Ch.V.V.Satyanarayana and Sri M.Bharathram. South: Site belong's Sri M.Bharathram.

West: Site belongs to Sri M.Tammayya and Sri M.Bharathram.

Further, respondent No.2 has given a clarification to Government that, on ground only two R.C.C. roof buildings and one temporary A.C. sheet roof shed will be affected due to the proposed realignment, but all the owners of the buildings and one temporary A.C. sheet roof shed have signed on the mahajar Petition and that the proposed realignment of 80 feet road will directly connect to the existing Morampudi road with the proposed 100 feet wide AVA road

forming four roads junction instead of connecting to the staggered junction.

Keeping in view the report of the respondent No.2, the Government has opined that it is clear that the proposed 80 feet wide realignment avoid staggered junction at the meeting point of 100 feet wide Master plan road and hence confirmed the draft variation duly over ruling the objection vide GOMs.No.411, MA & UD (H2) Department dated 20.12.2018. Further, in the instant case, a notification under Section 13 of the APMRUDA Act is not necessary as the area was not specifically intended to be a development area, requested to dismiss the writ petition.

Respondent No.4 filed separate counter denying all material allegations contending that the erstwhile Government on Andhra Pradesh vide G.O.Ms No.465, dated 28.10.1975 sanctioned a Master Plan for Rajamahendravaram Town. As per the '1975 Plan' an 80' feet road was proposed to be laid through the property of respondent No.4 i.e. S.No.328 and S.No.612/P., Pidimgoyyi S.R.O, Pidimgoyyi Panchayat, Rajahmundry Rural, extending along its eastern boundary, moving from south towards north and eventually connect to another 100 feet proposed road, to be extending from west towards east, at a certain point and continue to proceed further on, from the other side of such 100' proposed road, forming a perfect four-road junction i.e. 'proposed four-road junction'.

It is further contended that the description of the 'proposed four-road junction' is conducive and indispensible for safe and smooth regulation and conduct of heavy vehicular traffic, emanating from another four-road junction popularly known as 'Morampudi Junction' which is situated further below the 'proposed four-road junction'. The 'proposed four-road junction envisaged since the year 1975, is in the best interests of the public at large and is therefore indispensable.

It is further contended that in the year the 2017, the Government of Andhra Pradesh vide G.O.Ms No.289, dated 26.07.2017, sanctioned a revised master plan of the Rajamahendravaram Municipal Corporation including 13 villages around its vicinity and displayed such '2017 Plan' for inspection and notice to the general public. Such '2017 Plan', revealed that, the 'proposed four-road junction' has been mysteriously removed without calling for any objections whatsoever, by way of realigning the proposed 80' road, passing along the eastern boundary of the site of respondent No.4 towards the west and deeper into his site, thereby creating a staggered junction, disturbing the proposed four-road junction'. Absolutely, no reasons whatsoever were assigned for making such a change and the same was done with ulterior motive and to accommodate certain vested interests. The staggered junction, as was proposed in 2017 Plan', is absolutely arbitrary, illegal, malafide, patently detrimental and dangerous to the safe and smooth regulation and conduct of the heavy vehicular traffic passing through such junction and against the general public interest and welfare.

It is further contended that respondent No.4 submitted representation dated 21.08.2017 raising objection for implementation of such '2017 Plan' vis-à-vis alignment of the proposed 80 feet road through his site, thereby creating a staggered junction and requested realignment of such proposed 80, road, as per the '1975 Plan' itself, thereby restoring the originally envisaged 'proposed four-road junction', consequently protecting and Safeguarding the interests and safety of the public at large.

Considering the representation of respondent No.4; respondent No.2, called for objections from the general public vis-à-vis realignment of the road, vide its notice/publication dated 21.07.2018. Thereafter, writ petitioner no.1, seemingly a self-styled messiah of public causes, with ulterior motive of protecting his vested interests, submitted objections to respondent no. 2, seeking alteration of the '2017 Plan, by way of realigning the proposed 80' road and thereby creates a staggered junction. Such objections are absolutely false, frivolous, actuated by malice and an ulterior motive to protect certain illegal constructions, if any and are patently against the larger public welfare and interests and accordingly cannot be sustained under law. The ground report of respondent No.2 to respondent No.1 is proof of the above fact. All averments made to the contrary are absolutely false, malafide, vexatious and denied accordingly. The writ petitioners recklessly alleged that, respondent No.4 acting with a vested interest and influenced the respondents to get the '2017 Plan' altered, by converting a staggered junction into the 'proposed four-road junction'. All such averments are absolutely false, frivolous, and untenable under law and fact, malafide and are detrimental and contrary to the larger public welfare and interest of securing a safe and comfortable road ways to commute from the state. He never attempted nor has influenced any of the respondents, as is being alleged in the writ petition, but only sought for redressal of his grievance, which is also in the public interest, requested to dismiss the writ petition.

Upon hearing argument of both the counsel, learned single Judge held that the petitioners are in settled possession of the property over the years, and that the human and other implications about disturbing their settled possession, the cost implications thereof for vacating the petitioners from their premises are all factors which should have weighed with the officials concerned. The learned single Judge concluded that the impugned Government Order is not in consonance with the provisions of the APMRUDA Act, 2016, but on different reasoning. However, we will examine the procedure followed by the respondents about strict adherence to the Rule 15 (3) of the APMRUDA Act, 2016. Hence, the findings recoded by the learned single Judge needs no further elaboration.

The record does not show that a study of the traffic flow or of the need for a four road junction, the existence of the staggered junction for long and its implication etc. have been studied. In the absence of such study, the proposal for change of master plan invoking provisions of GUDA Act and the Andhra Pradesh Town Planning Act does not arise, set aside the G.O.Ms.No.411 dated 20.12.2018.

Aggrieved by the order of the learned single Judge, the State preferred this appeal raising several contentions, they are as follows:

• (a) The petitioners have constructed the structures in violation of the master plan; thereby the equity is not in their favour as it would amount to granting premium for their own illegal acts, but the learned single Judge did not consider the same.
• (b) The Government has sanctioned a master plan vide G.O.Ms.No.465 dated 28.10.1975 and as per the plan a 100 feet road is passing from South to North and it is crossing another 80 feet road which is passing from East to West at a point between Sy.Nos.330 and 333, thereby causing

disturbance to only one four road junction without hindrance to free flow of traffic, but the learned single Judge did not consider the same.

• (c) As the petitioners constructed the structures in violation of the original master plan, they are not entitled for protection on the ground of legitimate expectation, but the learned single Judge did not consider the same in proper perspective.
• (d) Learned single Judge did not consider the amended master plan, thereby alignment of East-West road was altered by drifting the alignment of the road towards west side at the meeting point of another 100 feet road thereby resulting in two staggered junctions, which is not only adversely affecting traffic congestion, but also has become dangerous and prone to traffic accidents
• (e) Learned single Judge also did not consider the public notice dated 21.07.2018, which was issued for calling objections and suggestions from public, and issue of G.O.Ms.No.411 dated 20.12.2020 for the benefit of public; the public interest outweighed the private interest, requested to set aside the order under challenge.

During hearing, learned counsel for the appellant (respondent No.1) would contend that as per G.O.Ms.No.465 dated 28.10.1975 master plan was approved for formation of 80 feet road (A-B) to connect 100 feet road without staggered junction to avoid traffic congestion and accidents. Later, proposed to change the alignment as "A-A". Thereupon, one M.Bharath Ram submitted representation to respondent No.1, who in turn forwarded the same to the Municipal council, Rajamahendravaram and the Rajamahendravaram Municipal Council after conducting necessary enquiry submitted recommendations to the Government for taking necessary action. On considering the same and after following necessary procedure, G.O.Ms.No.411 dated 20.12.2018 was issued restoring the "A-B" road, which was approved as per G.O.Ms.No.465 dated 28.10.1975. It is further contended that a notice was published by way of public notice calling for objections for proposed change of master plan restoring "A-B" road. The petitioners and others submitted their objections about the change of proposed master plan. Only after considering their objections, G.O.Ms.No.411 dated 20.12.2018 was issued restoring "A-B" road i.e. original road. But the petitioners approached this Court only with a malafide intention to stall the development activities by laying "A-B" road to connect 100 feet road. In case, the original master plan road is not restored, there is every possibility of danger to human life, more particularly passers-by as there is a staggered junction and there is every likelihood of causing accidents. In order to save the lives of passers-by permanently, the original master plan road was restored by G.O.Ms.No.411 dated 20.12.2018. Hence, the conclusions arrived by the learned single Judge are not based on any material, thereby the order passed by the learned single Judge is liable to be set aside, requested to set aside the order dated 10.12.2020 passed by the learned single Judge in W.P.No.6381 of 2019

Sri S.Sreeramachandra Murthy, learned counsel for respondent No.1 (writ petitioner) supported the order of the learned single Judge in all respects while vehemently contending that there is no basis for staggered junction as contended by the appellant/respondent No.1 in

the writ petition and no study has taken up by expert committee to conclude that there is a possibility of accidents in case the original road "A-B" was not restored as notified by G.O.Ms.No.465, dated 28.10.1975. In the absence of any study and report of expert committee, the very basis for such conclusion cannot be accepted, requested to dismiss the appeal while confirming the order passed by the learned single Judge. It is also submitted that the notification vide G.O.Ms.No.411 dated 20.12.2018 was issued contrary to the procedure, and the learned single Judge rightly set aside the G.O.Ms.No.411 dated 20.12.2018.

Considering rival contentions, perusing the material available on record, the points need be answered by this Court are as follows:

• (1) Whether G.O.Ms.No.411 Municipal Administration and Urban Development (H2) Department dated 20.12.2018 was issued strictly adhering to the procedure prescribed in the Andhra Pradesh Metropolitan Region and Urban Development Authorities Act, 2016 and the Andhra Pradesh Town Planning Act, 1920? If not, whether G.O.Ms.No411 dated 20.12.2018 be sustained?
• (2) Whether any study was undertaken by the State before concluding that there will be a staggered junction in case the original road "A-B" was not restored as notified by G.O.Ms.No.465, dated 28.10.1975 and there is likelihood of causing road accidents? If not, whether the conclusions arrived by the Municipal Corporation, or Godavari Urban Development Authority respondent Nos.2 and 3 in the writ petition in the report submitted to respondent Nos.1 and 2 and passing of G.O.Ms.No.411 dated 20.12.2018 are legal?

P O I N T No.1:

The main grievance of the writ petitioners is that procedure prescribed in the APMRUDA Act, 2016 and the Andhra Pradesh Town Planning Act, 1920 while issuing G.O.Ms.No.411 dated 20.12.2018. Whereas, respondent No.1 in the writ petition (appellant herein) contending that they strictly adhered to the procedure prescribed under both the Acts referred above. But, the Andhra Pradesh Town Planning Act, 1920 has no application in view of Section 114 of the APMRUDA Act.

The petitioners, from the beginning, contended that the procedure prescribed in APMRUDA Act has not been followed while restoring "A-B" road, which was notified in the original plan vide G.O.Ms.No.411 dated 20.12.2018. However, the petitioners admitted that they submitted objections when objections were called for by issuing notice, but they were not considered affording personal hearing. Whereas, the contention of the respondents is that the procedure has been adhered to strictly; in compliance of mandatory procedure prescribed under Section 15 of the APMRUDA Act objections were called for and the petitioners submitted their objections to respondent No.3, who in turn forwarded the same to respondent Nos.1 and 2 and on consideration of the same, respondent No.1 issued G.O.Ms.No.411 dated 20.12.2018. Undoubtedly, no personal hearing was afforded to the petitioners though they submitted objections as admitted by both the parties. Alteration or modification of the sanctioned plan is governed by Section 15 of the APMRUDA Act. It is relevant to extract Section 15 of the APMRUDA Act for better appreciation to examine the contention of the learned counsel for the petitioners about the non-compliance or compliance as contended by respondents. Accordingly, it is extracted hereunder:

"15. Modification to the sanctioned plans –

• (1) The Authority or the Government may, on a reference from the Authority or the Local Authority concerned or on an application made by a land owner to the Authority or Local Authority concerned, as the case may be, make such modifications to the sanctioned Perspective Plan [PP] or Master Plan [MP] or Area Development Plan or Zonal Development Plan, as it thinks fit and which in its opinion are necessary.
• (2) The Metropolitan Commissioner / Vice-Chairperson shall prepare a report together with necessary plans, full particulars of any such modification and submit to the Government for approval.
• (3) Before making any modifications to the Perspective Plan [PP] or Master Plan [MP] or Area Development Plan or Zonal Development Plan, the Authority, or as the case may be, the Government shall publish a notification inviting objections or suggestions from the public so as to reach within a period of fifteen days and shall consider all objections and suggestions that may be received by the Authority or Government.
• (4) After due consideration of the objections and suggestions received, the final modification made under the provisions of this section shall be notified by the Government in the Andhra Pradesh Gazette and the final modifications shall come into operation from the date of publication of such notification.
• (5) The Authority shall levy such fees and charges including development charges and conversion charges as applicable and as may be prescribed in any such modification effected to the sanctioned Perspective Plan [PP] or Master Plan [MP] or Area Development Plan or Zonal Development Plan from the land owners at whose instance the modifications are effected and also form the others who will have the advantage due to such modifications. These charges shall take into account the benefits that would accrue to the land owners from the change and shall seek to capture some share of the increased land value. 16. Enforcement of the sanctioned plan"

The only requirement under Clause 3 of Section 15 of the APMRUDA Act, 2016 is that the Metropolitan Commissioner/Vice-Chairperson shall prepare a report together with necessary plans, full particulars of any such modification and submit to the Government for approval. Before making any modifications to the Perspective Plan [PP] or Master Plan [MP] or Area Development Plan or Zonal Development Plan, the Authority, or as the case may be, the Government shall publish a notification inviting objections or suggestions from the public so as to reach within a period of fifteen days and shall consider all objections and suggestions that may be received by the Authority or Government.

Relevant paragraphs of G.O.Ms.No.411 dated 20.12.2018 are as follows:

"The Vice Chairman, Godavari Urban Development Authority (GUDA), Kakinada in the reference 3rd read above has submitted that, the Vice Chairman, GUDA, Kakinada has informed that, they have published the draft variation appendix notification pertaining to change of land use in the Deccan Chronicle (English version) and in Eenadu (Telugu version), respectively on 21.07.2018 calling for objections/suggestions from the general public. On publication of notification, Sri B.Tirupathi Rao and 26 others were made objection, wherein they have submitted that the proposed realignment of 80'-0'' proposed Master Plan road duly stating that their buildings will effect in the proposed realignment of the said 80'-0'' wide Master Plan road and also informed that they have constructed buildings after obtaining building permissions.

The Vice Chairman, Godavari Urban Development Authority has clarified that, on ground only two R.C.C. roof buildings and one temporary A.C. sheet roof shed will be affected due to the proposed realignment, but all the owners of the buildings and one temporary A.C. sheet roof shed have signed on the mahajar petition and the proposed realignment of 80'-0'' road will directly connect to the existing Morampudi road with the proposed 100'-0'' wide AVA road forming four roads junction instead of connecting to the staggered junction. Keeping in view the report of the Vice Chairman, GUDA, it is clear that the proposed 80'-0'' wide realignment avoids staggered junction at the meeting point of 100'-0'' wide master plan road. Hence, the objection is over ruled and the draft variation is confirmed."

Even according to the appendix, 7 conditions were imposed for change of alignment by the Government, but they are not relevant for the purpose of deciding the issue.

A bare look at Section 15 of the APMRUDA Act, 2016 the authority, either on its motion or on a reference from the Government or the local authority concerned or on an application made by a land owner to the authority or local authority concerned, as the case may be, make such modifications to the sanctioned perspective plan [PP] or master plan [MP] or Area Development Plan or Zonal Development Plan. In the present case, respondent No.4 - owner of the land, submitted representation to respondent No.3, who in turn forwarded the same to the concerned authority i.e. Municipal Commissioner. On receipt of the same, Metropolitan Commissioner shall prepare a report together with necessary plans, full particulars of any such modification and submit to the Government for approval. Thus, the role of Metropolitan Commissioner or Vice-Chairperson is limited to prepare a report together with necessary plans, full particulars of any such modification and submit to the Government for approval. Instead of discharging his duty as required under sub-section (2) of Section 15 of the APMURDA Act, 2016, the Vice-Chairperson has taken the role of the Government, called for objections/suggestions from the general public by issuing notification and received objections from 27 persons including Sri B.Tirupathi Rao for the proposed realignment of 80 feet wide master plan road while clarifying certain aspects more particularly with regard to the effect of change of 80 feet wide master plan road on two or three buildings etc. Thereafter, a notification was published by the Government annexing appendix to the Government. But the role of the Government is specified in subsection (3) of Section 15 of the APMURDA Act, 2016 as extracted above. Before effecting modifications to Master plan etc., the Government shall publish a notification inviting objections or suggestions from the public so as to reach within a period of 15 days and shall consider all objections and suggestions that may be received by the authority or Government. Only after due consideration of the objections and suggestions, the final modification shall be notified by the Government in the Andhra Pradesh Gazette.

Thus, the duty is cast upon the Government to call for objections, suggestions and consider the objections and suggestions. Instead of Government calling for objections or issuing notifications as mandated under sub-section (3) of Section 15 of the APMURDA Act, 2016, the vice-chairperson, GUDA himself called for objections by issuing notification, which is totally in contravention of the procedure prescribed under Section 15 (3) of the APMURDA Act, 2016. Thus, the G.O.Ms.No.411 dated 20.12.2018 was issued totally in contravention of the mandatory procedure prescribed under Section 15 of the APMURDA Act, 2016. Apart from that the Government is under obligation to consider the objections, but the Vice-chairperson himself consider the objections as recited in paragraph Nos.2 and 3 of G.O.Ms.No.411 dated 20.12.2018. Therefore, G.O.Ms.No.411 dated 20.12.2018 was issued in violation of mandatory procedure. On this ground alone, G.O.Ms.No.411 dated 20.12.2018 is liable to be set aside.

One of the contentions of the writ petitioners before the learned single Judge is that no opportunity of personal hearing was afforded to them before issuing the Government Order impugned in the writ petition. Section 15 is silent as to affording an opportunity of personal hearing to the objectors or the persons, who made suggestions while approving the draft scheme notified by respondent No.3 – Municipal

Corporation. The only requirement is to take into consideration all objections or suggestions, if any, made to the Government in pursuance of notification under Section 15 (3) of APMRUDA Act, while notifying the scheme by respondent No.1 in terms of Section 15 (3) of the APMRUDA Act. But, respondent No.1 did not consider the objections or suggestions, though the objections were called for and received by respondent No.3 from various persons, violating the procedure prescribed under Section 15 (3) of the APMRUDA Act.

Learned counsel for the petitioner contended that no personal hearing was afforded, thereby G.O.Ms.No.411 dated 20.12.2018 was issued in violation of principles of natural justice. Such contention cannot be accepted for the reason that no personal hearing is contemplated under Section 15 of the APMURDA Act, 2016, but the objections are required to be considered by the Government under Section 15 (3) of the APMURDA Act, 2016 before issuing final notification. Therefore, we find no substance in the contentions raised by the learned counsel for the petitioners regarding violation of principles of natural justice.

As discussed above, G.O.Ms.No.411 dated 20.12.2018, though issued, is not in strict compliance of the procedure laid down under Section 15 of the APMRUDA Act. Hence, G.O.Ms.No.411 dated 20.12.2018 is liable to be set aside on this ground alone. Accordingly, the learned single Judge set aside the same though on different grounds, the finding of the learned single Judge needs no interference by this Court in Intra Court appeal. Accordingly, the point is answered.

P O I N T No.2:

The main reason assigned in the counter for change of alignment is to avoid accidents master plan road is changed restoring the road sanctioned as per G.O.Ms.No.465, dated 28.10.1975.

A bare look at the contents of the Government Order, which is under challenge, alignment was changed only on account of staggered junction to connect 100 feet road, but not due to likelihood of accidents on account of 80 feet Master plan road as approved in G.O.Ms.No.289 dated 26.07.2017. When the Government Order is silent, respondent Nos.1 to 3 cannot improve their case by making certain allegations, more particularly, on the ground of avoidance of accidents and any interest of public will outweigh the interest of individual is impermissible in view of the law laid down by the Apex Court in "Mohinder Singh Gill v. The Chief Election Commissioner, New Delhi1".

It is a settled proposition of law that, pleading cannot substitute a reason in an administrative order and this view is fortified by the judgment of the Constitutional Bench in "Mohinder Singh Gill v. The Chief Election Commissioner, New Delhi", (referred supra) wherein it was held that when a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned therein and cannot be supplemented by fresh reasons in the shape of an affidavit or otherwise; otherwise, an order bad in the beginning may, by the time it comes to Court on account of a challenge, gets validated by additional reasons/grounds later brought in. In the said judgment, the Constitution Bench referred to earlier

¹ (1978) 1 SCC 405

judgment in "Commissioner of Police, Bombay v. Gordhandas Bhanji2", wherein the Apex Court observed as follows:

"Public orders, publicly made, in exercise of a statutory authority cannot be construed in the light of explanations subsequently given by the officer making the order of what he meant or of what was in his mind, or what he intended to do. As such orders are meant to have public effect and are intended to affect the acting and conduct of those to whom they are addressed' they must be construed objectively with reference to the language used in the order itself."

By applying the above principles to the facts of the present case, a party cannot improve the order by filing a counter affidavit, since it is impermissible, in view of the law declared by the Apex Court in the judgment referred above. Hence, the contention of the respondents that the alleged public interest will outweigh the interest of individual and to avoid accidents is nothing but an invention made at the time of filing counter. Therefore, the same is rejected.

One of the reasons for setting aside the Government Order by the learned single Judge is that the respondent Nos.1 to 3 did not undertake any scientific study regarding viability of change of Master Plan. In fact, when respondent Nos.1 to 3 contending that the proposed change is in the interest of public and to avoid accidents, there must be a scientific study by a reputed institution or by the Department of Surface Transport regarding viability of existing master plan as per master plan and proposed road, but no study has been taken up by the respondents. In the similar circumstances, the High Court of Kerala while deciding the dispute relating to change of alignment of National Highway to save religious institutions, considered the issue and concluded that the jurisdiction of this Court to interfere in such a situation is already settled by several decisions of this Court and the Apex Court and referred to the judgment of the

² AIR 1952 SC 16

Apex Court in "Union of India v. Kushala Shetty3". The relevant

portion of the above judgment is extracted hereunder:

28. Here, it will be apposite to mention that NHAI is a professionally managed statutory body having expertise in the field of development and maintenance of national highways. The projects involving construction of new highways and widening and development of the existing highways, which are vital for the development of infrastructure in the country, are entrusted to experts in the field of highways. It comprises of persons having vast knowledge and expertise in the field of highway development and maintenance. NHAI prepares and implements projects relating to development and maintenance of national highways after thorough study by experts in different fields. Detailed project reports are prepared keeping in view the relative factors including intensity of heavy vehicular traffic and larger public interest. The courts are not at all equipped to decide upon the viability and feasibility of the particular project and whether the particular alignment would subserve the larger public interest. In such matters, the scope of judicial review is very limited. The court can nullify the acquisition of land and, in the rarest of rare cases, the particular project, if it is found to be ex facie contrary to the mandate of law or tainted due to mala fides."

In the said case, the Apex Court held that NHAI is a professionally managed statutory body having expertise in the field of development and maintenance of National Highways. The Courts are not at all equipped to decide upon the viability and feasibility of a particular project and whether the particular assignment would subserve the larger public interest.

Therefore, the Apex Court observed that the judicial review is very limited. The Apex Court observed that the Court can nullify the acquisition of land in the rarest of rare cases, i.e., the particular project, if it is found to be ex-facie contrary to the mandate of law or tainted due to mala fides.

The principle laid down in the above judgment by the Apex Court will have a limited bearing on the facts of the present case. In the present case, no study was undertaken to conclude that there is a possibility of road accidents in case alignment of 80 feet wide master

³ 2011 (12) SCC 69

plan road is not changed. In the absence of such report, the contention of the respondents is to be rejected as it is devoid of merits.

At the same time, the Hon'ble Supreme Court in SLP. No. 34320-34334 of 2009, dated 21.2.2011 held as follows:

"24. Here, it will be apposite to mention that NHAI is a professionally managed statutory body having expertise in the field of development and maintenance of National Highways. The projects involving construction of new highways and widening and development of the existing highways, which are vital for the development of infrastructure in the country, are entrusted to experts in the field of Highways. It comprises of persons having vast knowledge and expertise in the field of highway development and maintenance. NHAI prepares and implements project relating to development and maintenance of national highways after thorough study by experts in different fields. Detailed project reports are prepared keeping in view the relative factors including intensity of heavy vehicular traffic and larger public interest. The Courts are not at all equipped to decide upon the viability and feasibility of the particular project and whether the particular alignment would subserve the larger public interest. In such matter, the scope of judicial review is very limited. The Court can nullify the acquisition of land and, in rarest of rare cases, the particular project, if it found to be ex-facie contrary to the mandate of law or tainted due to mala-fides. In other hand, neither any violation of mandate of the 1956 Act has been established, nor, the charge of malice in fact has been proved. Therefore, the order under challenge cannot be sustained.

Basing on the said principle, the High Court of Madras in "A.R.

Adil Basha v. The Project Director (A/C), National Highways

Authority of India4" concluded as follows:

The alignment and design of the National Highways are fixed by the Project Consultant not on the availability of land alone, but based on the stretch geometry. The by-pass is designed after duly taking into consideration the large scale demolition of settlement, amelioration of public infrastructure like school, business complexes, besides up keeping and developing of natural draining water course, resources of the entire area abutting the proposed highway road and in the vicinity as a whole. The apprehension of the petitioners about the water logging and inundation during rainy seasons has already been considered with the aid of the relevant data for the past several

⁴ Writ Petition Nos. 18688 of 2011 and M.P. Nos. 1 and 2 of 2011- Decided On: 21.10.2011

years and planning has also been made accordingly to mitigate the hardship in the event of floor or rain in this area. The detailed project report consultants found that the Option III is more feasible when compared to the option proposed by the District Collector (Option IV) both in technical and financial aspects. Further, the District Collector's option does not fulfil the engineering requirements of the NHAI standards. The suggested alignment on existing road is having an acute bend and it is not feasible to provide proper curve as per design standards of NHAI. The Chetpat road is running along the river bank and a bridge as suggested by the petitioners shall be followed by an acute bend which would lead to a large number of accidents.

Though the principle laid down by the High Court of Madras is not a binding precedent, still it has got persuasive value as the said principle was laid down based on the judgment of the Apex Court.

The High Court of Madras in the said judgment also concluded that the power under Article 226 is discretionary. It will be exercised only in furtherance of interests of justice and not merely on the making out of a legal point. And in the matter of land acquisition for public purposes, the interests of justice and the public interest coalesce. The Courts have to weigh the public interest vis-a-vis the private interest while exercising the power under Article 226 indeed any of their discretionary powers. It may even be open to the High Court to direct, in case it finds finally that the acquisition was vitiated on account of non-compliance with some legal requirement.

In any view of the matter and in view of the settled law, the scope is limited and the Court has to consider both public and private interest.

One of the contentions raised by the learned counsel for the petitioners is that the alignment was changed at the instance of respondent No.4, who is politically influenced person, being a Member of Parliament for the present. But this is not pleaded in the writ petition except attributing malafides to the respondents. When there is a hidden agenda for the proposed change, it must be supported by some material. To substantiate such contention, the petitioners did not produce any material to show that the alignment was changed due to the influence of respondent No.4. Nevertheless, we find that the respondents exhibited utmost haste in notifying the alignment exercising power under Section 15 of APMRUDA Act without complying mandatory procedure prescribed under Section 15 (2) and (3) of the APMRUDA Act and one fails to understand the reason for such hasty decision by respondent Nos.1 to 3.

In view of our foregoing discussion, we are unable to agree with the contention raised by the appellant (respondent No.1 in the writ petition) as G.O.Ms.No.411 dated 20.12.2018 impugned in the writ petition was issued in utter violation of the procedure prescribed under Section 15 of the APMRUDA Act. Hence, we find no merits and the appeal deserves to be dismissed.

In the result, the appeal is dismissed confirming the order dated 10.12.2020 passed by the learned single Judge in W.P.No.6381 of 2019. No costs.

However, we made it clear that this order will not preclude the competent authority under Section 15 of the APMRUDA Act to follow due procedure for alteration or modification of 80 feet wide master plan road after undertaking scientific study through professional skilled persons in the field.

The miscellaneous petitions pending, if any, shall also stand closed.

PRASHANT KUMAR MISHRA, CJ M. SATYANARAYANA MURTHY,J Ksp