D.S.R. Varma, J.

Heard the learned Advocate General, the learned Government Pleader for Municipal Administration and Urban Development, appearing for the appellants, the leaned counsel appearing for the respondent No.1 and the learned Standing Counsel for Municipality, appearing for the respondent No.2.

2. This Writ Appeal is directed against the order, dated 11-12-2007, passed by a learned single Judge of this Court, allowing the Writ Petition No. 7839 of 2006.

3. Appellants are respondent Nos.1 and 2, respondent No.1 is the writ petitioner and respondent No.2 is the respondent No.3 in the said writ petition.

4. The prayer in the said writ petition is as follows:-

"Petition under Article 226 of the Constitution of India seeking praying that in the circumstances stated in the Affidavit filed herein the High Court will be pleased to issue a Writ of Mandamus or any other appropriate Writ, Order or Orders, Direction or Directions declaring the action of the Respondents in depriving the petitioner of use of the land of 5.80 Acres shown as excess open space in L.P. No. 714/1984 as arbitrary, unconstitutional and illegal and to issue consequential direction to the respondents either to permit the petitioner to make use of the excess open space of 5.80 Acres as shown in L.P.No. 714/1984, in Sy. Nos. 380/A, 380IB,332/1 and 332/2, Kallur, Kurnool District, or to pay the compensation at market value to the petitioner in respect of the said land."

5. The factual matrix, in brief, is that, on 13-8-1984, a layout was approved by the respondent No.1 in respect of Ac.36.02 cents of land, situate in Survey Nos.332/1, 332/2, 380/ A and 380/B, Kallur Village, Kurnool District; that as per the requirement envisaged under G.O.Ms. No. 377, dated 12-10-1973, a total area of 5% was left as open space and the said extent came to Ac.1.80 cents; that in respect of Kurnool Municipality and the neighbouring Gram Panchayats, a master plan was sanctioned in the year 1976, under the provisions of the A.P. (Andhra Area) Town Planning Act, 1920 (for brevity "The Act) and that the layout plan held by the petitioner was included in the said master plan, under which an. extent of Ac. 7.60 cents falling in the layout of the petitioner was shown s open space.

Therefore, an extent of Ac.5.80 cents was shown to be the area in excess, earmarked for open space. The respondents have neither acquired the said land by paying compensation to the petitioner nor allowed him to utilize the same.

6. The learned single Judge, having considered the material, available on record, and also having heard both sides, allowed the writ petition, through the impugned order. Aggrieved by the same, the Government have preferred the presen1 Writ Appeal.

7. The learned single Judge, having gone through the order of another learned single Judge of this court, dated 30-7-2003, in Writ Petition No. 1215 of 2000, while observing that he was convinced that the facts in the said writ petition as well as in the present writ petition are identical except to the extent that in the other case there were two approved layouts and in the instant case there is only one approved layout and that this distinction is not material at all on the issue raised by the writ petitioner, rejected the submission made by the learned Government Pleader for Municipal Administration and the learned Standing Counsel for respondent No.2 herein, inasmuch as, the petitioner is required to leave 10% space, he is not entitled to the relief sought for in the writ petition.

8. The learned single Judge further observed that since the predecessors-in-title of the writ petitioner have been making every effort to convince the appellants herein as well as the respondent No.2 herein to accept their claim and the writ petitioner stepped into their shoes only in the year 2005, he was unable to agree with the submission of the learned Assistant Government Pleader that the relief sought for in the writ petition shall be rejected on the gr