IN THE HIGH COURT OF ANDHRA PRADESH: AMARAVATI

HON’BLE MR.JUSTICE DHIRAJ SINGH THAKUR , CHIEF JUSTICE

&

HON’BLE MR. JUSTICE R. RAGHUNANDAN RAO

WRIT APPEAL No.751 of 2022

The State of Andhra Pradesh,

Rep. by its Special Chief Secretary,

Municipal Administration and

Urban Development Department,

Secretariat, Velagapudi,

Guntur District and two others.

... Appellants

Versus

M/s. Raghava Estates and Properties Limited,

D.No.64-9-2, Beside Eenadu, KanuruSubbaiah Building,

Vijayawada, Krishna District, Andhra Pradesh

Rep., by its Managing Director Sri L. Ravindra Rao

S/o. late Sri L. V. Raghava Rao and four others.

…Respondents

Mr. S. Sriram, learned Advocate General, representing Government

Pleader for Municipalities, Counsel for the appellants.

Mr. P. Veera Reddy, Senior Counsel a/w Mr. K. Jyothi Prasad,

Counsel for the respondents.

DATE : 19.03.2024

PER DHIRAJ SINGH THAKUR, CJ :

The present writ appeal under clause 15 of the Letters Patent

has been preferred against the judgment and order dated

04.03.2022 passed in W.P.No.22002 of 2020.

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With a view to understand the background in the light of

which the present controversy has arisen, it is necessary to state

material facts in brief:

2. The petitioners/respondent Nos.1 to 5 herein are developers

who owned certain parcels of land situate in Proddutur village in

Kankipadu Mandal of Krishna District falling under S.Nos.27/1, 28,

28/2, 30, 30/2, 42/3, 43/3, 43/4, 52/4, 52/6, 60/6, 61/1, 61/4,

61/7, 177/1, 179/2, 180/4, 180/5, 180/8, 180/9 and 181/6. The

petitioners claim that a 60 feet wide road had been earmarked in

the Zonal Development Plan (for short, “ZDP”) which would run

through the aforementioned parcels of land belonging to the

petitioners.

3. According to Section 17 of the Andhra Pradesh Urban Areas

(Development) Act, 1975 which was in force then (which stood

repealed by virtue of Andhra Pradesh Metropolitan Region and

Urban Development Authorities Act, 2016), a land required for

purposes of development of an area identified in the master plan or

the ZDP and is subject to compulsory acquisition, could not have

been built upon for a period of ten years from the date of operation

of the plan under Section 10 of the said Act and it was only if the

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land was not compulsorily acquired within the said period that the

owner of the land got a right to issue a notice to the Government

requiring his interest in the land to be so acquired. According to

Section 17 (2) of the said Act, if the Government failed to acquire

the land within a period of six months from the date of receipt of

notice, then it would be presumed that such land was not required

to be kept as an open space or was not designated as subject to

compulsory acquisition.

4. Since certain land parcels of the petitioners fall within the

sixty (60) feet wide road which was identified in the ZDP, the

petitioners approached the Vice-Chairman, Vijayawada Guntur

Tenali and Mangalagiri Urban Development Authority (VGTMUDA)

for permission to develop the ZDP road at the cost of the

petitioners. What was stated in the said application is reproduced

for facility of reference:

“In the Zonal Development plan approved by the

Government vide G.O.Ms.No. 387 MA, dated 31.05.2008,

the proposed 60' wide road is identified going through our

lands of R.S. No. 27 & 28 of Konathanapadu Village and

R.S. No. 60/6, 61/1,4,7, 52/4 50/1 43/3, 4 42/3 ,

179/2,180/4,5,8,9, 181/6,7, 177/1 of Prodduturu Village.

We are willing to develop the Master Plan Road with

our own cost in view of the development that would take

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place. So, we request you to kindly permit us to lay the

road & hand it over to local bodies as per the norms of

VGTM UDA. We also request you to issue the TDR

certificate as per your rules & regulations.”

5. This communication was responded to by the Vice-Chairman,

VGTMUDA wherein the Vice-Chairman sought to know the intent

behind the development of the road in question, the extent and area

which was sought to be developed as also sought information

regarding the owners of the property.

Communication, dated 19.09.2008, was responded to by the

petitioner’s letter, dated 07.04.2009, wherein they deliberately

chose not to disclose their intent for developing sixty (60) feet wide

road and instead annexed only the documents of the affected land

belonging to the petitioners and yet again sought permission to

develop the master plan road and also prayed yet again for grant of

TDR certificates.

6. Finally, the matter having been considered by the Vice -

Chairman of the aforesaid authority permission was granted vide

its communication dated 14.05.2009 in the following terms:

“The Z.D.P. roads have to be formed by the local bodies

concern. As the formation of Master plan/ZDP road by the

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individuals in whose land the road is proposed, will lessen

the financial burden on the local bodies and also facilitate

accessibility to the public at large and will open new

avenues for development, permission is hereby granted to

form and develop the ZDP road falling in S.No's. 43/2 (P),

3(P), 4(P), 52/6 (P), 60/6(P), 61/1(P), 4(P), 7(P) of

Prodduturu(v), Kankipadu Mandal belonging to Sri L.

Raveendra Managing Director, M/s Ragava Estates Ltd.

which is designated as 60’ -0” wide road in ZDP as

approved vide G.O. Ms. No.678 dated 07-09-2007 subject

to handing over the same to the concerned Gram

Panchayat i.e. Prodduturu G.P. free of cost for the public

purpose.”

7. This letter was addressed to each of the writ petitioners. What

is important to note in all these communications is that there was

no promise that the TDR certificates would be issued in favour of

the petitioners. Moreover, it was specifically mentioned in the

communication, dated 14.05.2009, that road would be developed

free of cost for public purposes.

It is not out of place here to mention that after the

development of the part of the sixty (60) feet wide road, the

petitioners executed gift deeds in favour of the VGTMUDA as per

the chart below:

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Details of land handed over by the petitioner from 2009 to 2013 for

formation of 60ft. road

S.No. Document

No.

Date of

execution

Extent of site handed

over

In Sqm In

Sqyards

1 3516/2009 25-11-2009 1385.17 1656.66

2 3531/2009 25-11-2009 3188.11 3812.97

3 3532/2009 25-11-2009 264.69 316.56

4 3534/2009 25-11-2009 18.23 21.8

5 3537/2009 25-11-2009 1663.92 1990.04

6 1016/2012 18-02-2012 2408.17 2880.17 Rectified deed

No.3533/2009

7 1017/2012 18-02-2012 1401.05 1675.65 Rectified Deed

No.3535/2009

8 1018/2012 18-02-2012 1593.36 1905.65 Rectified Deed

No.3536/2009

9 3429/2013 27-04-2013 3188.11 3812.97

10 7403/2013 10-12-2013 4444.23 5315.3

19555.04 23387.77

8. After obtaining the approval in principle by virtue of

communications dated 14.05.2009, the petitioners filed

applications for obtaining layout permissions and subsequently,

after obtaining layout permissions, Gift Deeds were executed in

favour of the authority.

9. At this stage, it would be pertinent to reflect the chronology of

events by way of the following table starting from the dates of

Applications for surrender of land, date of grant of Permission for

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developing ZDP road, dates of applications made by the petitioners

for grant of layout permission, the date of said permission and the

date of execution of the Gift Deeds in favour of the authority, with a

view to highlight the fact that the layout permissions were applied

for immediately after the permission in principle had been granted

vide communication dated 14.05.2009.

Name of the

Petitioner/

Applicant

Date of

Application

for

surrender

of land for

formation

of road

Date of

grant of

Permission

for

developing

ZDP road

Date of

layout

application

made by

the

petitioner

Extent

(in

Acres)

Date of

grant of

Layout

Permission

Date of

execution

of Gift

Deeds

M/s. Raghava

Estates &

Properties

Ltd./

petitioner

No.1

19.09.2008

and

07.04.2009

14.05.2009 -- 8.06 09.11.2009 For Sy.

Nos.61/1,

61/4 on

25.11.2009

and

Rectified

Deed on

18.02.2012

20.04.2010 3.28 07.07.2011 For Sy.

Nos.43/2,

43/3, 43/4

& 52/6 on

25.11.2009

14.03.2013 7.669 24.12.2013

09.06.2014 11.56 30.04.2015

M/s. Water

Mark Villas

(Development

Agreement

with Raghava

Estates Ltd./

Petitioner

No.2)

19.09.2008

and

07.04.2009

14.05.2009 05.03.2009 25.31 04.06.2009 For Sy.

No.60/6 on

25.11.2009

and

Rectified

Deed on

18.02.2012

05.08.2009 7.27 05.03.2011

19.01.2013 6.89 22.08.2013

01.03.2013 15.38 20.08.2013

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Petitioner

Nos.1 and 2

19.09.2008

and

07.04.2009

14.05.2009 -- -- -- For Sy.

Nos.42/3,

42/4 on

27.04.2013

REL Builders

Pvt.

Ltd./petitione

r No.2 and

RPT

Constructions

Pvt. Ltd./

Petitioner

No.3

19.09.2008

and

07.04.2009

14.05.2009 25.07.2018 1.29 11.01.2019 For Sy.

Nos. 42/3,

179/2,

180/5,

180/4,

180/8,

180/9,

177/1,

181/6 on

09.12.2013

;

For

Sy.No.28/2

on

25.11.2009

;

For Sy. No.

27/1 , 28,

30, 52/4 on

25.11.2009

Smt. Anitha/

Petitioner

No.4

19.09.2008

and

07.04.2009

14.05.2009 -- -- -- For Sy.

No.52/4 on

25.11.2009

Sri. L.

Ravindra Rao

19.09.2008

and

07.04.2009

14.05.2009 -- -- -- For Sy.

No.60/6,

61/7 on

25.11.2009

and

Rectified

Deed on

18.02.2012

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10. It is not out of place here to mention that petitioner No.4

namely Mrs. Anitha, had not filed any application for grant of

layout permission, yet insofar as the claim for TDR certificates is

concerned, the petitioners all claim the said benefit.

11. According to the Zoning Regulations of 1993 for VGTMUDA

framed by the Municipal Administration and Urban Development

(I2) Department notified vide G.O.Ms.No.718, M.A., dated

30.11.1993 and in particular Regulation 20, any developer seeking

permission for a layout certificate, should have an approach road

from an existing public or private road of width not less than nine

meters. According to Regulation 21, the streets and roads of length

and width as prescribed in the table annexed thereto would be

gifted in favour of the authority concerned and would continue to

vest in the said authority.

What is important to notice in Regulation 21 is the fact that

there was a requirement that a road with a minimum width of sixty

feet (60 ft.) had to be kept where the length of the road in the layout

was between six hundred meters (600 mts.) to one thousand

meters (1000 mts.).

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12. The claim of the petitioners for grant of TDR certificates has

its genesis in the revised Building Rules of 2007 notified by

Municipal Administration and Urban Development (M) Department

vide G.O.Ms.No.678, dated 07.09.2007. Rule 15 whereof envisages

as under:

“15. GRANT OF TRANSFERABLE DEVELOPMENT RIGHT:

Grant of Transferable Development Right (TDR) may be

considered, by the Competent Authority for the following areas

subject to the owner complying with the conditions of

development above, as per the following norms:

(a) For the Master Plan road network undertaken and

developed equivalent to 100% of built up area of such area

surrendered.

(b) …

(c) …

The TDR may be arrived at on the basis of relative land value

and equivalent amount in both export and import areas, as per

the Registration Department records. The Competent authority

shall have the discretion in the matter of applicability of TDR.

The TDR shall not be allowed in unauthorized buildings/

structures/ constructions, and shall be considered only after the

land is vested with the local authority/UDA. The TDR Certificate

would be issued by the Competent authority would be valid or

utilized/ disposed only within the concerned local body area and

as per guidelines and conditions prescribed by the Competent

Authority.”

12.1. TDR is defined under Rule 2 (1) (vii) as under:

“2. 1.

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…

…

(vii) "Transferable Development Right” (TDR) means an award

specifying the built up area an owner of a site or plot can sell or

dispose or utilize elsewhere, whose site or plot is required to be

set apart or affected for a community amenity or development

for public purpose in the Master Plan or in road widening or

covered in recreational use zone, etc. and applicable only after

such lands are vested with the local body/ Urban Development

Authority as the case may be. The award would be in the form of

a TDR Certificate issued by the competent Authority.”

13. The petitioners claim that land measuring four acres ninety

two cents (Acs.4.92 cents) had been surrendered by them forming

a part of the ZDP layout and therefore, were entitled to receive TDR

certificates in that regard.

14. Subsequently, G.O.Ms.No.168 dated 07.04.2012 was issued

which inter alia envisaged an increase in the grant of TDR

certificates under Rule 17 as under:

“17. GRANT OF TRANSFERABLE DEVELOPMENT RIGHT:

(a) …

(b) Grant of TDR can be considered by the Competent Authority

/ Sanctioning Authority for the following areas subject to the

owners complying with the conditions of development above, as

per the following norms:

(i) For the Master Plan Road / Road Development Plan

undertaken and developed: equivalent to 200% of built up area

of such area surrendered. For conservation and development of

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lakes / water bodies / nalas foreshores & Recreational buffer

development with greenery, etc: equivalent to 100% of built up

area of such recreational buffer area developed at his cost.”

15. Thereafter, the Government issued Andhra Pradesh Building

Rules, 2017 (hereinafter called as “Rules of 2017”) vide

G.O.Ms.No.119, dated 28.03.2017, however, in the said Rules, the

ratio earlier prescribed at 200% for grant of TDR certificates was

maintained.

16. Government Order bearing G.O.Ms.No.223, dated 09.07.2018,

was issued by the Government wherein Sub-clauses (a) and (b) of

Rule 168 (2) was substituted as under:

“X. (1).

(i) for clause (a) and (b), the following shall be substituted,

namely,-

(a) For the Master Plan Road / Road Development Plan

undertaken and developed / Circulation network/ any

development for public purpose in Master Plan/peripheral road

in group development schemes equivalent to 400% of such area

surrendered.

(b) For conservation and development of iakes / water bodies /

nalas foreshores & Recreational buffer development with

greenery/Roads on either side of Electrical Tower lines and

clearance distance left for oil/gas pipelines: equivalent to 200%

of such area surrendered.”

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Finally, the Government appears to have issued the

Government Order bearing G.O.Ms.No.180 , dated 01.10.2020,

whereby Rule 169 of the Rules of 2017 were amended inter alia as

under:

“VII. (5) (d) Claiming of TDR for the portion of road formed

by the owners or real estate developers to get access to the

real estate project is not allowed.”

17. From the record, it appears that representations were filed by

the petitioners on 13.07.2018, 11.10.2018, 07.06.2019, seeking

the benefit of TDR from the respondents on account of their having

surrendered the land to the extent of four acres ninety two cents

(Acs.4.92 cents). These representations were considered and

rejected by virtue of communication, dated 13.02.2020, issued by

the Secretary to Government, Municipal Administration and Urban

Development Department, wherein it was held that according to the

existing layout rules, neither TDR certifica tes nor any

compensation could be claimed inasmuch as the land owners when

they apply for layout permission, the master plan road passing

through the layout becomes the part of the layout pattern which

has to be handed over to the local body free of cost.

18. The petitioners having failed to get the requisite relief from

the respondents, preferred a writ petition which was allowed by

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virtue of judgment and order dated 04.03.2022, which is impugned

in the present writ appeal.

19. The learned single Judge held that the communication, dated

13.02.2020, as also G.O.Ms.No.180 was not binding upon the

petitioners and that G.O.Ms.No.180 could not have taken away the

rights which were already vested in the petitioners. The learned

single Judge then proceeded to hold that the petitioners were

entitled to the TDR certificates @ 400% as envisaged under

G.O.Ms.No.223, dated 09.07.2018.

20. Learned Advocate General, appearing for the appellants,

would submit that the view expressed by the learned single Judge is

unsustainable in law on all counts. It is stated that there are no

reasons given at all in the judgment impugned as to how the

petitioners were entitled to receive the benefit of TDR as envisaged

under the Rules of 2007 and assuming that they were, it was

submitted that the learned single Judge had given no reasons at all

as to how G.O.Ms.No.223, dated 09.07.2018, would be applicable to

their case.

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21. A lot of emphasis was laid on the fact that the entire proposal

to develop the sixty feet (60 ft.) wide road was to enable the

petitioners to use it as an access road for the layouts which they

propose to develop on either side of the said road which was a part

of the ZDP. It was urged that the authority concerned had been

suspicious of the motives of the petitioners right from the beginning

and therefore had questioned their intent vide communication ,

dated 23.12.2008, for the proposed development which deliberately

was not disclosed by the respondents in their subsequent

communication dated 07.04.2009. It is stated that while the

permission had been granted by the authority to develop the sixty

feet (60 ft.) wide road, there was no commitment made to the

petitioners with regard to the grant of TDR.

It was further sought to be emphasized that immediately after

the permission was granted by the authority on 14.05.2009, layout

permissions were sought for and were granted between 2009 and

2013. It is stated that according to the layout rules, the developer

had to provide for an access road from the main road which was not

done in the present case and that the zonal development road was

sought to be used by the petitioners as the access road. It was

therefore, stated that since the ZDP road was permitted to be

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developed at the cost of the petitioners, no TDR rights could have

been legitimately and legally claimed by the petitioners.

22. Learned counsel for the appellant would further submit that if

at all the petitioners were to be entitled to receive the benefit of

TDR, it could have been only restricted to the rates envisaged under

G.O.Ms.No.678, dated 07.09.2007, which envisaged the grant of

TDR rights @ 100% of the built up area of such areas surrendered. It

was therefore stated that since the land had been surrendered

between 2009 and 2013, when the G.O.Ms.No.678, dated

07.09.2007 was in force, there was no basis for the learned single

Judge to have allowed the petition holding that the petitioners were

entitled to the benefit of G.O.Ms.No.223, dated 09.07.2018.

23. Counsel for the respondents have reiterated the submissions

as were made before the learned single Judge.

24. The issue of the approval of the layout plans has no direct

bearing on the right of a person to claim TDR. The fact that the

petitioners were using the ZDP road as an access road without

providing for a different access road would have some bearing on

whether or not the layout permission ought to have been granted or

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refused. However, we are not inclined to agree with the line of

argument advanced by the counsel for the appellant that TDR could

have been refused on that basis upto the time when the official

respondents have now issued G.O.Ms.No.180, dated 01.10.2020

which in our opinion would have only prospective effect.

25. It is not denied that land measuring four acres ninety two

cents (Acs.4.92 cents) has been surrendered by the petitioners to

the authority by way of Gift Deeds as the same was falling in the

sixty feet (60 ft.) wide road envisaged by the zonal development

plan. It is a coincidence that the petitioners own land on either side

of this road. For the time being, if one were to forget that the

petitioners had any intention of planning a layout around the

proposed sixty feet (60 ft.) wide road, the petitioners would not be

able to construct upon those parcels of land which fell along the

proposed road as per the ZDP. The said land would be subject to

acquisition and if for a period of ten years, the land was not so

acquired, the petitioners would be entitled to serve upon the

respondents a notice ‘requiring’ his interest in the land to be so

acquired and if the Government still failed to acquire the land

within a period of six months from the date of receipt of the said

notice, it would be considered that the land would not be required

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and was not designated as a subject of compulsory acquisition. This

was the spirit of Section 17 of the Andhra Pradesh Urban Areas

(Development) Act, 1975 which before its repeal by the Andhra

Pradesh Metropolitan Region Development Authorities Act, 2016

read as under:

“17. (1) Where any land situated in any development

area is required by the Master Plan or zonal

development plan to be kept as an open space or unbuilt

upon or is designated in any such plan as subject to

compulsory acquisition, if at the expiration of ten years

from the date of operation of the plan under Section 10,

or where such land has been so required or designated

by any amendment of such plan, from the date of

operation of such amendment, the land is not

compulsorily acquired, the owner of the land may serve

on the Government a notice requiring his interest in the

land to be so acquired.

(2) If the Government fail to acquire the land within a

period of six months from the date of receipt of the

notice, the Master Plan or zonal development plan, as

the case may be, shall have effect after the expiration of

the said six months, as if the land were not required to

be kept as an open space or unbuilt upon or were not

designated as subject to compulsory acquisition.”

26. In our opinion, the petitioners would be entitled to TDR rights

only when a right would accrue to the petitioners to claim such TDR

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rights. Since TDRs are granted only in lieu of the compensation

pursuant to acquisition of land, no such right to claim TDR

certificates would accrue to the petitioners in the absence of any

such acquisition proceedings having been initiated by the

Government. For all we know the Government may change the ZDP

and decide not to construct the road as envisaged earlier in the

plan.

27. It appears to us that the aforementioned situation did not

arise at all and the petitioners on their own volunteered to develop

the road which included the land parcels of the petitioners and

sought permission in that regard from the Vice-Chairman of the

VGTMUDA, who after due consideration granted approval to the

request of the petitioners with a specific condition that the land

would vest in the Gram Panchayat free of cost for a public purpose.

Not only this, the permission dated 14.05.2009, was conspicuously

silent on the request of the petitioners with regard to granting them

TDR.

28. The petitioners, in a great hurry gifted the parcels of land

measuring four acres ninety two cents (Acs.4.92 cents) in favour

of the Gram Panchayat out of their own free will and promise that it

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would be ‘free of cost’ for a public purpose. If the land gifted to the

Gram Panchayat is free of cost for a public purpose and has never

been a subject matter of acquisition or intended acquisition, no

right would accrue to the petitioners to claim the TDR rights in the

absence of an actual acquisition or in lieu of compensation.

29. In our opinion, no right accrues to the petitioners to claim any

TDR rights from the respondents. The judgment and order

impugned in our opinion is unsustainable in law and is accordingly

set aside.

30. For the reasons aforementioned, the present writ appeal is

allowed. No order as to costs.

Pending miscellaneous applications, if any, shall stand closed.

DHIRAJ SINGH THAKUR , CJ R. RAGHUNANDAN RAO , J

SSN