MACHAVARAPU SRINIVASA RAO AND ANOTHERversusANDHRA PRADESH URBAN AREAS

                   [2011] 12 S.C.R. 639

    MACHAVARAPU SRINIVASA RAO AND ANOTHER                     A
                             v.
  THE VIJAYAWADA, GUNTUR, TENALI, MANGALAGIRI
   URBAN DEVELOPMENT AUTHORITY AND OTHERS
            (Civil Appeal No. 7935 of 2011)
                  SEPTEMBER 19, 2011                          B

          [G.S. SINGHVI AND H.L. DATTU, JJ.]

    ANDHRA PRADESH URBAN AREAS
    (DEVELOPMENT) ACT, 1975:                                  c
    s. 12 - Change of land use - Site in question earmarked
for recreational purpose in the Zonal Development Plan duly
approved by the State Government - Grant of permission by
Development Authority to respondent-society to construct a D
temple at the site in question - HELD: Development Authority
erred in granting permission to respondent-society to construct
a temple at the site in question - Once the Master Plan or
the Zonal Development Plan is approved by the State
Government, no one including the State Government/
Development Authority can use land for any purpose other E
than the one specified therein - There is no provision in the
Act under which the Development Authority can sanction
construction of a building etc. or use of land for a purpose
other than the one specified in the Master Plan/Zonal
Development Plan - The power vested in the Development F
Authority to make modification in the development plan is
a/so not unlimited - It cannot make important alterations in
the character of the plan - Such modification can be made
only by the State Govemm(jJnt and that too after following the
procedure prescribed u/s. 12(3) - Therefore, Development G
Authority could not have entertained the application made by
respondent-society and granted permission for construction
of temple at the site reseNed for recreational use and that too

                           639                                H
    640     SUPREME COURT REPORTS              [2011] 12 S.C.R.


A by ignoring that the same had not been allotted to respondent-
    society by any public authority.

        s.5(1) - Powers and duties of the Development Authority
    - Discussed.
B       WORDS AND PHRASES: Word 'development' -
    Meaning of, in the context of s.2(e} of the Andhra Pradesh
    Urban Areas (Development) Act, 1975.

       Respondent No.1 was constituted under Section 3(1)
c of the Andhra Pradesh Urban Areas (Development) Act,
  1975 to promote and secure the development of different
  parts of the four towns, namely, Vijayawada, Guntur,
  Tenali and Mangalagiri. In 1978, respondent No.1 acquired
  91 acres land at Chenchupet, Tenali and prepared a layout
0 plan for development. As per the approved plan, 10 sites
  were earmarked for parks. These included an area of 75
  cents comprised in Town Survey No.2/3, Block No.1, Ward
  No.1, Chenchupet. The Master Plan was approved by the
  State Government. After about 15 years, the State
- Government decided that the Master Plans be replaced
  by a comprehensive Zonal Development Plan. The land
  in question was shown in the Zonal Development Plan
  earmarked for recreational purpose. Respondent No.3-
  society submitted an application to respondent No.1 for
  grant of permission to construct Sri Venkateswara
F Swamy Vari Temple at the site which formed part of Town
  Survey No.2/3. Respondent No.1 passed resolution for
  grant of permission to the Residents Welfare Association
  to construct the Temple. In furtherance of that decision,
  Vice-Chairman of respondent No.1 issued order dated
G 30.3.2010.After about one month and ten days, the Vice
  Chairman of respondent No.1 issued amended order
  dated 10.5.2010 in the name of respondent No.3 because .
  by mistake permission for construction of temple was
  issued in favour of the Residents Welfare Association,
H which had not even submitted application.
 MACHAVARAPU SRINIVASA RAO v. VIJAYAWADA, GUNTUR,      641
      TENALI, MANGALAGIRI URBAN DEV. AUTH.

     Respondent Nos. 1 and 3 made efforts for securing A
an order from the State Government for change of land
use. The appellants filed a writ petition by way of public
interest litigation questioning the decision of respondent
No.1 to sanction construction of temple. They pleaded
that the Zonal Development Plan prepared by respondent B
No.1 and approved by the State Government was
statutory in character and land covered by the Zonal
Development Plan could not be used for a purpose other
than the one specified in the Plan and respondent No.1
did not have the jurisdiction to sanction construction of c
temple at the site of which land use was shown as
recreational (park). In the counter affidavit filed on behalf
of respondent No.1, it was pleaded that mere allotment
of land for construction of temple did not give any cause
to challenge order dated 30.3.2010.                           0
     The High Court declined the appellant's prayer for
quashing order dated 30.3.2010 on the premise that
respondent No.1 had merely allotted land to respondent
No.3. The instant appeal was filed challenging the order
of the High Court.                                       E

    Allowing the appeal, the Court

     HELD: 1. None of the documents produced before
the High Court and this Court showed that respondent
No.3 had applied for allotment of land for construction of F
temple and respondent No.1 had allotted the site after
following some procedure consistent with the doctrine of
equality enshrined in Article 14 of the Constitution. Not
only this, a bare reading of order dated 30.3.2010 showed
that respondent No.1 had granted permission to G
respondent No.3 for construction of temple at the site in
question. There was nothing in the language of that order
or the conditions enshrined therein from which it could
be inferred that respondent No.1 had allotted land to
                                                             H
    642    SUPREME COURT REPORTS             [2011] 12 S.C.R.

A   respondent No.3. Therefore, the High Court was clearly
    in error in deciding the writ petition by assuming that it
    was only a case of allotment of land. [Para 11] [651-D-F]

        2. Section 2(e) of the Andhra Pradesh Urban Areas
B (Development) Act, 1975 contains the definition of term
   "development". The definition of the "development" is
   comprehensive. It takes within its fold the carrying out of
   all or any of the works contemplated in a Master Plan or
   Zonal Development Plan and the carrying out of building,
   engineering, mining or other operations in, on, over or
C under land, or the making of any material change in the
   existing building or land. Redevelopment is also included
   within the ambit of the term "development". The proviso
   to the -definition excludes certain works, which are of
   temporary nature. Section 13 of the Act empowers the
D Government to declare an urban area or group of urban
   areas to be a development area for proper development
   of such- area or areas. Once an urban area or a group of
   urban areas is declared to be a development area, the
 . Government is obliged to constitute an Urban
E Development Authority under Section 3(1 ). The
   Development Authority is enjoined with the task of
   promoting and ensuring development of all or any of the
   areas comprised in the development area according to
   the sanctioned plan and for that purpose, the Authority
F has the power to acquire, by way of purchase or
   otherwise, hold, manage, plan, develop and mortgage or
   otherwise dispose of land and other property, to carry out
   by or on its behalf building, engineering, mining and
   other operations, to execute works in connection with
G supply of water and electricity, disposal of sewerage and
   control of pollution, other services and amenities
   [Section 5(1)]. Chapter Ill of the Act contains provisions
   for preparation of Master Plan and Zonal Development
   Plan. Section 12(1) empowers the Development Authority
H
  MACHAVARAPU SRINIVASARAO v. VIJAYAWADA GUNTUR,         643 .
       TENALI, MANGALAGIRI URBAN DEVAUTH.
  to make appropriate modifications in the plan which do A
  not effect important alterations in the character of the
  plan and which do not relate to the extent of land uses
  or the standards of population density. Section 12(2)
  empowers the State Government to make any
  modification in the plan either on its own or on a s
  reference made by the Development Authority. Section
  12(3) and (4) lays down the procedure for making
  modification of plan which is substantially similar to the
  procedure prescribed for preparation of the plan. Section
  15 prohibits the use of land otherwise than in conformity c
  with the plan. An analysis of these provisions showed
  that once the Master Plan or the Zonal Development Plan
· is approved by the State Government, no. one including
  the· State Government/Development Autho'rity can use
  land for any purpose other than the one specified thereir:i.
                                                               0
  There is no provision in the Act under which the
  Development Authority can sanction construction of a
  building etc. or use of land for a purpose other than the
  one specified in the Master P.lan/Zonal DevelopmentPlan.
  The power vested in the Development Authority to make E
  modification in the development plan is also not
  unlimited. It cannot make' important alterations in the
  character of the plan. Such modification can be made
  only by the State Government and that too after
  following the procedure prescribed under Section 12(3).
  [Paras 12-14) [651-G-H; 654-G-H; 655-A-D-H; 656--A-C]        F

      3. In the pleadings filed before the High Court, the
 respondents had not controverted the assertion made by
 the appellants that in the approved Zonal Development
 Plan, land comprised in Town Survey No.2/3 was                  G
 earmarked for recreational use. Therefore, in the absence
 of change of land use which could have been sanctioned
 only by the State Government, respondent No.1 had no
 jurisdiction to grant permission to respondent No.3 to
 construct temple at the site. Respondent No.1 was very          H
                                                       {._
    644      SUPREME COURT REPORTS            [2011] 12 S.C.R.


A much alive to thi~ legal position and this was the reason
  why its Vice Chairman had written letter dated 15.6.2010
  to the Principal Secretary to the Government for change
  of land use by stating that a mistake had been committed
  at the time of preparation of Zonal Development Plan. It
B is a different thing that the State Government has not
  sanctioned change of land use by modifying the zonal
  development plan in accordance with the procedure
  prescribed under Section 12(3) and (4). Respondent No.1
  could not have entertained the application made by
c respondent No.3 and granted permission for
  construction of temple at the site reserved for
  recreational use and that too by ignoring that the same
  had not been allotted to respondent No.3 by any public
  authority. As a corollary, it must be held that the High
0 Court committed serious error by refusing to quash order
  dated 30.3.2010 by assuming that it was merely a case
  of allotment of land. [Para 15] [656-F-H; 657-A-D]

          Bangalore Medical Trust v. B. S. Muddappa (1991) 4
    SCC 54: 1991(3) SCR 102:.. referred to.
E
       4. The matter deserves to be considered from
  another angle. It was neither the pleaded case of
  respondent No.3 nor any document was produced before
  the High Court and none was produced before this Court
F to show that 15 cents land forming part of Town Survey
  No. 213 was allotted to it by any public authority after
  following a recognized mode of disposal of public
  property. Even though respondent No.3 was not an
  owner of the site, it made an application for grant of
G permission to construct the temple and functionaries of
  respondent No.1 accepted the same without making any
  inquiry about the title of respondent No.3. Thus, the
  illegality committed by respondent No.1 in issuing order
  dated 30;3.2010 was writ large on the face of the record.
H [Para 17] [660-A-D]
 MACHAVARAPU SRINIVASARAO v. VIJAYAWADA, GUNTUR,            645
      TENALI, MANGALAGIRI URBAN DEV AUTH.

                      Case Law Reference:                          A
     1991 (3) SCR 102          referred to           Para 16
    CIVIL APPELLATE JURISDICTION : Civil Appeal No.
7935 of 2011 etc.
                                                                   B
    From the Judgment & Order dated 13.09.2010 of the High
Court of Judicature, Andhra Pradesh Hyderabad in Writ Petition
No. 12766 of 2010.
                               WITH
Contempt Pet. (C) No. 300 of 2011 in Civil Appeal No. 7835         C
of 2011.

     T. Kanaka Durga for the Appellants.
    P.S. Narasimha, Satya Mitra, Venkateswara Rao Anumolu,         D
N. Rajaraman, P. Prabhkar, Sanjeev Kumar, Ajit Singh for the
Respondents.

     THe Judgment of the Court was delivered by

     G.S. SINGHVI, J. 1. Leave granted.                            E
     2. The questions which arise for consideration in this
appeal are whether respondent No.1 - the Vijayawada, Guntur,
Tenali, Mangalagiri Urban Development Authority had the
jurisdiction to grant permission to respondent No.3 - Sri          .F
Venkateswara Swamivari Alaya Nirmana Committee for
construction of temple at the site of which land use was shown
as recreational in the Zonal Development Plan approved by the
State Government and whether the Division Bench of the High
Court of Andhra Pradesh was justified in refusing to nullify the
decision taken by respondent No.1 by' assuming that it was only    G
a case of allotment of site.

      3. Respondent No.1 was constituted under Section 3(1)
of the Andhra Pradesh Urban Areas (Development) Act, 1975
(for short, 'the Act') to promote and secure the development of    H
    646         SUPREME COURT REPORTS            [2011] 12 S.C.R.


A different parts of the four towns, namely, Vijayawada, Guntur,
  Tenali and Mangalagiri. In 1978, respondent No.1 acquired 91
  acres land at Chenchupet, Tenali and prepared a layout plan
  for development. As per the approved plan, 10 sites were
  earmarked for parks. These included an area of 75 cents
B comprised in Town Survey No.2/3, Block No.1, Ward No.1,
  Chenchupet.

        4. The Master Plan of Tenali town was approved by the
   State Government vide G.O.Ms. No.969 dated 21.11.1978 and
   the Master Plan of the urban area of respondent No.1 was
C approved vide G.O. Ms. No.144 dated 3.3.1988. After about
   15 years, the State Government decided that the Master Plans
   be replaced by a comprehensive Zonal Development Plan. For
   this purpose, the Vice Chairman of respondent No.1 was
   authorized to take necessary steps. Thereafter, the area
D covered by the urban region of respondent No.1 was divided
   into 23 planning zones and it was decided that Zonal
   Development Plans be prepared on priority basis in respect
   of 15 zones including Tenali zone. The draft Zonal Development
   Plan of Tenali was published in the local newspapers and
E objections/suggestions were invited from the public. In the final
 . Zonal Development Plan of Tenali town, which was approved
   by the State Government vide G.O. Ms. No.689 dated
   30.12.2006, land use was divided into the following 9 (main)
   categories:
F
          "1.     Residential use Zone

          2.      Mixed Residential use Zone.

          3.      Commercial use Zone [Local, Central and General
G                 Commercial use].

          4.      Industrial use Zone

          5.      Public and Semi public use Zone

H         6.      Recreational use Zone.
 MACHAVARAPU SRINIVASA RAO v. VIJAYAWADA, GUNTUR. 64 7
TENALI, MANGALAGIRI URBAN DEV. AUTH. [GS. SINGHVl, J.]

     7.    Transportation and Communication use Zone              A
           (Roads, Railways, Airports, Bus Depots and Truck
           Terminals)

     8.    Agricultural use zone.

     9.    Water Bodies."                                         B

     5. Respondent No.3, which was registered as a society
in March, 2009 under the Andhra Pradesh Societies
Registration Act, 2001, submitted an application dated
28.5.2009 to respondent No.1 for grant of permission to · C
construct a temple at the site which formed part of Town Survey
No.2/3. After considering the objections received from the
public, respondent No.1 passed resolution dated 4.2.2010 for
grant permission to the Residents Welfare Association to
construct Sri Venkateswara Swamy Vari Temple. In furtherance D
of that decision, Vice-Chairman of respondent No.1 issued
order dated 30.3.2010, the relevant portions of which, as
contained in Annexure P-4 of the SLP paper book, are
extracted below:                         ·

    "Therefore the 'Residential Welfare Association' is           E
    permitted to construct Sri Venkateswara Swamy Vari
    Temple in the earmarked site and orders are issued
    accordingly.

        The said 'Residential Welfare Association' Alaya          F
    Committee is directed to follow the folloi,ying conditions:

     1.    The said Association has no ownership rights on
           the site earmarked for Religious center in the
           lDSMT Scheme. The said Association has right to        G
           construct the temple only. The complete rights on
           the site and building shall rest with the UDA only.

     3.    The Association should not make use of allotted
           site for other purposes except for the construction
           of temple.                                             H
    648         SUPREME COURT REPORTS                [2011] 12 S.C.R.


A          4.    Temple should be constructed within three years
                 from the date of issue of this order. Or else the UDA
                 is having every right to take over the site along with
                 the incomplete building.

           5.    In the said site activities pertaining to Temple alone
B
                 should be conducted and it should not be used for
                 commercial and business purposes.

           6.    The meetings and activities of Alaya Committee
                 should be conducted as per laws.
c
           7.    The conditions made by the GovernmenWGTM
                 UDA from time to time shall be in force.

           8.    If the conditions are violated the said site along with
                 the building shall be taken over.•
D
       After about one month and ten days, the Vice Chairman
  of respondent No.1 issued amended order dated 10.5.2010 in
  the name of respondent No.3 because by mistake permission
  for construction of temple was issued in favour of the Residents
E Welfare Association, which had not even submitted application.

       6. Having succeeded in convincing respondent No.1 to
  grant permission for construction of temple at the site, which
  did not even belong to it, respondent No.3 approached the
F State Government for change of land use from recreational
  (park) to public/semi public. Simultaneously, the Vice Chairman
  of respondent No·.1 addressed letter dated 15.6.2010 to the
  Principal Secretary to Government, Municipal Administration
  and Urban Development Department for change of land use.
G He pointed out that in the Integrated Development of Small and
  Medium Towns Scheme, 1981 (for short, 'the 1981 Scheme')
  15 cents land comprised in Town Survey No.2/3 was reserved
  for religious center but, by mistake the same was shown as
  earmarked for recreational use in the Zonal Development Plan.

H         7. While respondent Nos. 1 and 3 were making efforts for
 MACHAVARAPU SRINIVASARAO v. VIJAYAWADA, GUNTUR, 649
TENALI, MANGALAGIRI URBAN DEV AUTH. [GS. SINGHVI, J.]

securing an order from the State Government for change of              A
land use, the appellants filed writ petition by way of public
interest litigation questioning the decision of respondent No.1
to sanction construction of temple. They pleaded that the Zonal
Development Plan prepared by respondent No.1 and approved
by the State Government is statutory in character and land             s
covered by the Zonal Development Plan cannot be used for a
purpose other than the one specified in the Plan and respondent
No.1 did not have the jurisdiction to sanction construction of
temple at the site of which land use was shown as recreational
(park). In the counter affidavit filed on behalf of respondent No.1,   c
it was pleaded that mere allotment of land for construction of
temple did not give any cause to the writ petitioners to challenge
order datf·; 30.3.2010 and as and when an application is
made for construction of temple, respondent No.1 will consider
whether land can be used for a purpose other than the one              D
specified in the Zonal Development Plan. In the affidavit filed
on behalf of respondent No.3, it was pleaded that as per the
Zonal Development Plan, land coming under the Residential
Use Zone can be utilized for construction of Kalyana
Mandapams without creating any noise pollution, function halls/        E
public assembly halls, religious center etc. and in the absence
of any bar in the Zonal Development Plan, no exception can
be taken to the permission granted by respondent No.1 for
construction of temple.

      8. The Division Bench of the High Court noticed that as          F
per the approved Zonal Development Plan, Town Survey No.2/
3 is earmarked for recreational use (park) and held that unless
the State Government relaxes the use of land, respondent No.1
cannot grant permission for construction of temple. However,
the appellants' prayer for quashing order dated 30.3.2010 was          G
declined by making the following observations:

     "Once the land was earmarked for the parks/recreational
     use in the modification of the Master Plan of Tenali Town
     as approved in G. 0. Ms. No. 689, dated 30. 12. 2006,
                                                                       H
    650      SUPREME COURT REPORTS                  [2011] 12 S.C.R.


A         unless the Government relaxes the use of the land for
          any other purpose than the one notified, the first
          respondent cannot grant permission for construction of
          temple if it is prohibited under G.O.Ms.No.689, dated
          30.12.2006. Mere allotment of the land for construction
B         of temple will not give rise any cause of action unless
          permission for construction of temple is accorded by the
          first respondent on submitting the plans. As and when the
          plans are submitted with specific proposal for construction
          of temple, the first respondent is under obligation to
          consider the prohibition contained under the modified
c         Master Plan issued in G. 0. Ms. No. 689, dated 30. 12. 2006.
          It is under obligation to invite the objections from the
          residents of the locality including the petitioners and
          consider the said objections before granting permission.
          If such construction of temple is prohibited, it is also open
D
          for the third respondent to move the Government by filing
          an application seeking relaxation of the land use and if any
          relaxation is granted by the Government, it can make its
          application to the first respondent."
E                                                (emphasis supplied)

        9. Learned counsel for the appellants argued that the
  impugned order is liable to be set aside because the High
  Court disposed of the writ petition by erroneously assuming that
F order dated 30.3.2010 was only for allotment of land to
  respondent No.3. Learned counsel emphasized that in the
  approved Zonal Development Plan, land use of Town Survey
  No.2/3 has been shown as recreational (park) and argued that
  respondent No.1 committed a jurisdictional error by sanctioning
G construction of temple at the site without even making an effort
  to find out whether the site belongs to respondent No.3.

       10. Learned counsel for the respondents supported the
  impugned order and argued that the permission granted by
  respondent No. 1 cannot be faulted merely because land use
H of the site has not been changed by the State Government.
  MACHAVARAPU SRINIVASA RAO v. VIJAYAWADA. GUNTUR, 651
 TENALI, MANGALAGIRI URBAN DEV. AUTH. [GS. SINGHVI, J.]

Learned counsel for respondent No.1 submitted that while              A
preparing the Zonal Development Plan the competent authority
had overlooked the fact that in the 1981 Scheme 15 cents land
forming part of Town Survey No.2/3 was reserved for religious
center and this is the reason why the Vice Chairman of
respondent No.1 had written to the State Government to rectify        B
the mistake. He then argued that the appellants do not have
the locus to question resolution dated 4.2.2010 and order dated
30.3.2010 because they did not file objection against the
proposed construction of temple at the site of which land use
has been shown in the Zonal Development Plan as recreational.         c
      11. We shall first consider whether the High Court was
justified in declining relief to the appellants on the premise that
respondent No.1 had merely allotted land to respondent No.3.
In this context, it is apposite to observe that none of the
documents produced before the High Court and this Court show          D
that respondent No.3 had applied for allotment of land for
construction of temple and respondent No.1 had allotted the
site after following some procedure consistent with the doctrine
of equality enshrined in Article 14 of the Constitution. Not only
this, a bare reading of order dated 30.3.2010 leaves no               E
manner of doubt that respondent No.1 had granted permission
to respondent No.3 for construction of temple at the site in
question. There is nothing in the language of that order or the
conditions enshrined therein from which it can be inferred that
respondent No.1 had allotted land to respondent No.3.                 F
Therefore, the High Court was clearly in error in deciding the
writ petition by assuming that it was only a case of allotment of
land .

    . 12. The next question, which merits consideration is            G
whether respondent No.1 had the jurisdiction to allow
construction of temple at the site which was reserved for
recreational use in the Zonal Development Plan. Section 2(e)
which contains the definition of term "development" and
Sections 7, 12(1 ), (2), (3) and (4) and 15 of the Act, which have    H
    652       SUPREME COURT REPORTS                  [2011] 12 S.C.R.


A   bearing on the decision of this question read as under:

          "2(e) 'development' with its grammatical variations means
          the carrying out of all or any of the works contemplated in
          a master plan or zonal development plan referred to in this
          Act, and the carrying out of building, engineering, mining
B
          or other operations in, on, over or under land, or the
          making of any material change in any building or land and
          includes redevelopment.

                Provided that for the purposes of this Act, the
c         following operations or uses of land shall not be deemed
          to involve development of the land that is to say-

                 (i) the carrying out of any temporary works for the
          maintenance, improvement or other alteration of any
D         building, being works which do not materially affect the
          external appearance of the building:

                (ii) the carrying out by a local authority of any
          temporary works required for the maintenance or
          improvement of a road, or works carried out on land within
E         the boundaries of the road;

                (iii) the carrying out by a local authority or statutory
          undertaking of any temporary works for the purpose of
          inspecting, repairing or renewing any sewers, mains,
F         pipes, cables or other apparatus, including the breaking
          open of any street or other land for that purpose:

                (iv) the use of any building or other land within the
          cartilage purpose incidental to the enjoyment of the
          dwelling house as such; and
G
                (v) the use of any land for the purpose of agriculture,
          gardening OF forestry (including afforestation) and the use
          for any purpose specified in this clause of any building
          occupied together with the land so used;
H
 MACHAVARAPU SRINIVASA RAO v. VIJAYAWADA, GUNTUR, 653
TENALI, MANGALAGIRI URBAN DEV AUTH. [GS. SINGHVI, J.]
   7. Zonal development plans: - (1) Simultaneously with             A
   the preparation of Master Plan or as soon as may be
   thereafter the Authority shall proceed with the.preparation
   of zonal development plan for each of the zones into which
   the development area may be divided.
                                                                     8
   (2) A zonal development plan may,-

   (a) contain a site plan and land use plan for the
   development of the zone and show the approximate
   locations and extents of land uses proposed in the zones
   for such purposes as roads, housing, schools, recreation,         C
   hospitals, industry, business, markets, public works and
   utilities, public buildings, public and private open spaces
   and other categories of public and private uses;

   (b)     xxx xxx xxx                                               D
   (c)     xxx xxxxxx
  ,(d) in particular, contain provisions regarc;ling all or any of
   the following matters, namely-
                                                                     E
   (i)     xxx xxx xxx
   (ii) the allotment or reservation of lands for roads, open
   spaces, gardens, recreation grounds, schools, markets
   and other public purposes;
                                                                     F
   (iii) to (Xii)                xxxxxxxxx
   12. Modifications to plan: - (1) The Authority may make
   such modifications to the plan as it thinks fit, being
   modifications which, in its opinion, do not effect important      G
   alterations in the character of the plan and which do not
   relate to the extent of land uses or the standards of
   population density.

   (2) The Government may suo motu or on a reference from
                                                                     H
    654      SUPREME COURT REPORTS                 [2011) 12 S.C.R.

A         the Authority make any modifications to the plan, whether
          such modifications are of the nature specified in sub-
          section (1) or otherwise.

          (3) Before making any modifications to the plan, the
          Authority or, as the case may be, the Government shall
B
          publish a notice in such form and manner as may be
          prescribed inviting objections and suggestions from any
          person with respect to the proposed modifications before
          such date as may be specified in the notice and shall
          consider all objections and suggestions that may be
c         received by the Authority or the Government.

          (4) Every modification made under the provisions of this
          section shall be published in such manner as the Authority
          or the Government, as the case may be, may specify and
D         the modifications shall come into operation either on the
          date of the publication or on such other date as the
          Authority or the Government may fix.

          15. Use of the land and buildings in contravention of
          plans: - After the coming into operation of any of the plans
E
          in a zone, no person shall use or permit to be used any
          land or building in that zone otherwise than in conformity
          with such plan:

          Provided that it shall be lawful to continue to use upon such
F         terms and conditions as may be determined by regulations
          made in this behalf, any land or building for the purpose
          for which, and to the extent to which, it is being used on
          the date on which such plan comes into force."

G       13. The definition of the "development" is comprehensive.
  It takes within its fold the carrying out of all or any of the works
  contemplated in a Master Plan or Zonal Development Plan and
  the carrying out of building, engineering, mining or other
  operations in, on, over or under land, or the making of any
H material change in the existing building or land. Redevelopment
      MACHAVARAPU SRINIVASA RAO v. VIJAYAWADA, GUNTUR, 655
     TENALI, MANGALAGIRI URBAN DEVAUTH. [GS. SINGHVl, J.] ·
     is also included within the ambit of the term "development". The A
     proviso to the definition excludes certain works, which are of
     temporary nature. Section· 13 of the Act empowers the
    Government to declare an urban area or group of urban areas
    to be a development area for proper development of such area
    or areas. Once an urban area or a group of urban areas is B
    declared to be a development area, the Government is obliged
    to constitute an Urban Development Authority under Section
0

    3(1). The Development Authority is enjoined with the task of
    promoting and ensuring development of all or any of the areas
    comprised in the development area according to the sanctioned     c
    plan and for that purpose, the Authority has the power to
    acquire, by way of purchase or otherwise, hold, manage, plan,
    develop and mortgage or otherwise dispose of land and other
    property, to carry out by or on its behalf building, engineering,
    mining and other operations, to execute works in connection
                                                                       0
    with supply of water and electricity, disposal of sewerage and
    control of pollution, other services and amenities [Section 5(1)).
    Chapter Ill of the Act contains provisions for preparation of
    Master Plan and Zonal Development Plan. Section 7(1) ·
    provides for preparation of Zonal Development Plan for each
    of the zones into which the development area may be divided. E
    Section 7(2) enumerates the matter, which may be spe:cified
    in the Zonal Development Plan. Clause (a) thereof speaks
    among other things of land use plan for the development of the
    zone and the approximate locations and extents of land uses
    proposed in the zones for purposes like roads, housing, F
    schools, recreation, hospitals, industry, business, markets,
    public works and utilities, public buildings, public and private
    open spaces and other categories of public and private uses.
    Sections 8 and 9 lay down the procedure for preparation and
    approval of the Master Plan/Zonal Development Plan. Section G
    10 lays down that immediately after approval of Plan by the
    State Government, the authority shall publish a notice
    evidencing such approval and from the date of first publication
    of notice the Plan shall come into operation. Section 12(1)
                                                                       H
     656      SUPREME COURT REPORTS                 (2011] 12 S.C.R.


A    empowers the Development Authority to make appropriate
     modifications in the plan which do not effect important
     alterations in the character of the plan and which do not relate
     to the extent of land uses or.the standards of population density.
     Section 12(2) empowers the State Government to make any
B    modification in the plan either on its own or on a reference
     made by the Development Authority. Section 12(3) and (4) lays
     down the procedure for making modification of plan which i$
     substantially similar to the procedure prescribed for preparation
     of the plan. Section 15 prohibits the use of land otherwise than
c    in conformity with the plan.

          14. An analysis of the above noted provisions shows that
     once the Master Plan or the Zonal Development Plan is
     approved by the State Government, no one including the State
     Government/Development Authority can use land for any
D    purpose other than the one specified therein. There is no
     provision in the Act under which the Development Authority can
     sanction construction of a building etc. or use of land for a
     purpose other than the one specified in the Master Plan/Zonal
     Development Plan. The power vested in the Development
E    Authority to make modification in the development plan is also
     not unlimited. It cannot make important alterations in the
     character of the plan. Such modification can be made only by
     the State Government and that too after following the procedure
     prescribed under Section 12(3).
F
           15. In the pleadings filed before the High Court, the
     respondents had not controverted the assertion made by the
     appellants that in the approved Zonal Development Plan, land
     comprised in Town Survey No.2/3 was earmarked for
""   recreational use. Therefore, in the absence of change of land
~    use which could have been sanctioned only by the State
     Government, respondent No.1 had no jurisdiction to grant
     permission to respondent No.3 to construct temple at the site.
     Respondent No.1 was very much alive to this legal position and
     this is the reason why its Vice Chairman had written letter dated
H
 MACHAVARAPU SRINIVASARAO v. VIJAYAWADA, GUNTUR, 657
TENALI, MANGALAGIRI URBAN DEY. AUTH. [GS. SINGHVI, J.]
 15.6.2010 to the Principal Secretary to the Government for A
 change of land use by stating that a mistake had been
 committed at the time of preparation of Zonal Development
 Plan. It is a different thing that the State Government has not
 sanctioned change of land use by modifying the zonal
 development plan in accordance with the procedure prescribed B
 under Section 12(3) and (4). In this scenario, there is no escape
 from the conclusion that respondent No.1 could not have
 entertained the application made by respondent No.3 and
granted permission for construction of temple at the site
 reserved for recreational use and that too by ignoring that the c
same had not been allotted to respondent No.3 by any public
authority. As a corollary, it must be held that the High Court
committed serious error by refusing to quash order dated
30.3.2010 by assuming that it was merely a case of allotment
of land.
                                                                   D
      16. The view taken by us on the legality of order dated
30.3.2010 finds support from the judgment of this Court in
Bangalore Medical Trust v. B.S. Mudr:Jappa (1991) 4 SCC 54.
In that case, allotment of land, which was shown as open space
in the sanctioned development plan, for construction of a E
nursing home was challenged on the ground that the State
Government and the Bangalore Development Authority did not
have the jurisdiction to make such allotment. The learned Single
Judge negatived the challenge but the Division Bench allowed
the appeal and quashed the allotment. The judgment of the F
Division Bench was approved by this Court. R.M. Sahai, J., who
delivered the main judgment highlighted the importance of
reservation of land for the public park in a development plan
and adversely commented upon use thereof for construction of
nursing home in the following words: ·                             G
    "Public park as a place reserved for beauty and recreation
    was developed in 19th and 20th century and is associated
    with growth of the concept of equality and recognition of
    importance of common man. Earlier it was a prerogative H
    658       SUPREME COURT REPORTS                    (2011] 12 S.C.R.

A         of the aristocracy and the affluent either as a result of royal
          grant or as a place reserved for private pleasure. Free and
          healthy air in beautiful surroundings was privilege of few.
          But now it is a, 'gift from people to themselves'. Its
          importance has multiplied with emphasis on environment
B         and pollution. In modern planning and development it
          occupies an important place in social ecology. A private
          nursing home on the other hand is essentially a
          commercial venture, a profit oriented industry. Service may
          be its motto but earning is the objective. Its utility may not
c         be undermined but a park is a necessity not a mere
          amenity. A private nursing home cannot be a substitute for
          a public park. No town planner would prepare a blueprint
          without reserving space for it. Emphasis on open air and
          greenery has multiplied and the city or town planning or
          development Acts of different States require even private
D
           house owners to leave open space in front and back for
           lawn and fresh air. In 1984 the B.D. Act itself provided for
           reservation of not less than 15 per cent of the total area of
           the layout in a development scheme for public parks and
           playgrounds the sale and disposition of which is prohibited
E          under Section 38-A of the Act. Absence of open space and
           public park, in present day when urbanisation is on
           increase, rural exodus is on large scale and congested
           areas are coming up rapidly, may give rise to health
            hazard. May be that it may be taken care of by a nursing
F           home. But it is axiomatic that prevention is better than cure.
           What is lost by removal of a park cannot be gained by
           establishment of a nursing home. To say, therefore, that by
            conversion of a site reserved for low lying park into a private
            nursing home social welfare was being promoted was
            being oblivious of true character of the two and their utility.·

    T.K. Thommen, J., who agreed with R.M. Sahai, J. referred to
    the provisions of the Bangalore Development Authority Act,
    1976 and observed:
;
 MACHAVARAPU SRINIVASA RAO v. VIJAYAWADA, GUNTUR, 659
TENALI, MANGALAGIRI URBAN DEVAUTH. [GS. SINGHVI, J.]
   "The scheme is meant for the reasonable accomplishment : A .
   of the. statutory object which is to promote the orderly
   developmentof the city of Bangalore and adjoining areas
   and to preserve open spaces by reserving public parks .
   and playgrounds with a view to protecting the residents
   from the ill-effects of urbanisation. It meant for the B
   development of the city in a way that maximum space is
   provided for the benefit of the public at large for recreation,
   enjoyment, 'ventilation' and fresh air. This is clear from the
   Act itself as it originally stood. The amendments inserting
   Section 16(1 )(d), 38-A and o.ther provisions are c
   clarificatory of this object. The very purpose of the BOA,
   as a statutory authority, is to promote the healthy growth
   and development of the city of Bangalore and the areas
   adjacent thereto. The legislative intent has always been the
   promotion and enhancement of the quality of life by
                                                                   0
   preservation of the character and desirable aesthetic
   features of the city. The subsequent amendments are not
   a deviation from or alteration of the original legislative
   intent, but only an elucidation or affirmation of the·same. ·

   Protection of the environment, open spaces for recreation        E
  and fresh air, playgrounds for children, promenade for the
  residents, and other conveniences or amenities are
  matters of great public concern and of vital interest to be
  taken care of in a development scheme. It is that public
  interest which is sought to be promoted by the Act by             F
  establishing the BOA. The public interest in the reservation
  and preservation of open spaces for parks and
  playgrounds cannot be sacrificed by leasing or selling such
  sites to private persons for conversion to some other user.
  Any such act would be contrary to the legislative intent and     G
  inconsistent with the statutory requirements. Furthermore,
  it would be in direct conflict with the constitutional mandate
  to ensure that any State action is inspired by the basic
  values of individual freedom and dignity and addressed to
                                                                   .H
    660      SUPREME COURT REPORTS               •. [2011] 12 S.C.R.


A         the attainment of a quality of life which makes the
          guaranteed rights a reality for all the citizens."

       17. The matter deserves to be considered from another
  angle. It is neither the pleaded case of respondent No.3 nor any
8 document     was produced before the High Court and none has
  been produced before this Court to show that 15 cents land
  forming part of Town Survey No. 2/3 was 11llotted to it by any
  public authority after following a recognized mode of disposal
  of public property. It has surprised us that even though
  respondent No.3 was not an owner of the site, it made an
C application for grant of permission to construct the temple and
  functionaries of respondent No .1 accepted the same without
  making any inquiry about the title of respondent No.3. Thus; the
  illegality committed by respondent No.1 in issuing order dated
  30.3.2010 is writ large on the face of the record.
D
        18. In the result, the appeal is allowed and the impugned
   order is set aside. As a corollary, the writ petition filed by the
   appellantsJs also allowed and order dated 30.3.2010 as also
   amended-order dated 10.5.2010 issued by respondent No.1
E are quashed. The parties are left to bear their own costs.

          19. Since we have allowed the main appeal, the contempt
    petition filed by the appellants is disposed of as infructuous.

    . D.G.                                         Appeal allowed .