Andhra HC (Pre-Telangana)
Ushodaya Publications Private Ltd. vs Smt. M. Ramanamma And Ors. on 29 April, 1997
Equivalent citations: AIR1998AP13, 1997(3)ALT362, AIR 1998 ANDHRA PRADESH 13, (1997) 2 LACC 149, (1997) 4 ANDHLD 37, (1997) 3 ANDH LT 362
Author: R. Bayapu Reddy
Bench: R. Bayapu Reddy
JUDGMENT Y. Bhaskar Rao, J.
1. Writ Appeal No. 454 of 1989 is directed against the judgment of the learned single Judge allowing the Writ Petition No. 10270 of 1985 filed by the 1st respondent and quashing the orders of the Government in G.O. (RT) No. 1062, M.A. dated 30-12-83 and the orders issued in Memorandum No. 103/M1/ 84-1, M.A. dated 16-1-1984.
2. Respondent No. 1 herein filed the Writ Petition No. 10270 of 1995 for a Writ of Mandamus declaring the action of the Government of Andhra Pradesh -- 2nd respondent herein -- in granting relaxation of Zoning Regulations, 1981, in favour of the appellant enabling the appellant to take up construction of certain additions at ground floor and also to take up new constructions i.e. construction of 2nd to 5th floors over the existing ground and 1st floors or to erect plant and machinery at premises No. 63-570 (Eeenadu Compound), Somajiguda, Hyderabad, in G.O. Ms. No. 1062, M.A. dated 30-12-1983 and in deleting Condition No. 3 in para 2 of G.O. Rt. No. 1062 by the Memo No. 103/M1 /84-1, M.A. dated 16-1-1984, as illegal, without jurisdiction and void.
3. The facts that led to the filing of the Writ Appeal are as follows :--
The 1st respondent -- Writ Petitioner viz., Smt. M. Ramanamma is the owner of the premises bearing No. 6-3-570 situated at Somajiguda, Hyderabad consisting of open land and a double storeyed building therein. It would appear that an agreement dated 28-2-1975 was entered into by the 1st respondent with the appellant viz., M/s. Ushodaya Publications Private Ltd., agreeing to lease out the building and the open land with certain conditions stipulated therein, the details of which arc not material for the purpose of these proceedings. The appellant was given possession of the open land and the temporary structures standing therein for construction of a building to establish a press to publish what is known as "Eenadu" daily newspaper. It is the case of the 1st respondent that the existing building was in the occupation of the Government and the lease deed would be executed after possession of the building was delivered by the Government and the lease would become operative thereafter. According to the appellant, under the agreement, it is entitled to proceed with the construction of the building in the open land and accordingly it was proceeding. Plans were submitted for construction. The 1st respondent filed O.S. No. 9 of 1976 on the file of the Court of II Addl. Judge, City Civil Court, Hyderabad for delivery of possession of the portion of the land and the appellant in turn filed O.S. No. 59 of 1976 for specific performance of the contract of lease. The litigation pending before the Civil Court is not relevant for the purpose of these proceedings. Since the proposed construction is not in accordance with the Bhagyanagar Urban Development Authority Zoning Regulations, 1981 (for short, "the Zoning Regulations") issued in G.O. Ms. No. 916, M.A. dated 11-8-1981, a proposal has been sent up by the Municipal Corporation of Hyderabad to the Government for necessary relaxation. The appellant has also made a similar request in his letter dated 3-5-1981 to relax the Bye-laws with regard to the open space on the southern and western side. Then remarks have been called for from the Special Officer, Municipal Corporation, who, in his proceedings dated 22-7-1983 wrote to the Government that the site in question is declared as "Public and Semi-public use zone" which is now treated as residential use zone. The proposed construction of the building for printing press is not permissible in a residential zone, and, therefore, the proposal for relaxation of Zoning Regulation 6.1.2 is to be made. The Government, pursuant thereto, issued the orders in G.O. Rt. No. 1062, Municipal Administration and Urban Development Department dated 30-12-1983 exercising the power under Regulation 12 of the Zoning Regulations and Regulation 19 of the Multi-storeyed Building Rules, 1981, relaxing Regulation 6.1.2 of the Zoning Regulations for change of the land use and Regulation 14(ii) of the Multi-storeyed Building Rules to the extent of 6.34 meters to maintain a minimum width of 24 meters in the rear side in favour of the proposed additions in the ground floor and the proposed construction of second to fifth floors over the existing ground floor and first floor, subject to the following conditions :
"1. That the petitioners should produce 'No Objection Certificate' from the Director General of Fire Services;
2. That the petitioner should submit structural designs as required under Multi-storeyed Building Rules, 1981.
3. That the owner of the land should also sign the application for the proposed additions in token of having approved the request of the petitioners for proposed additions to the existing ground floor and 2nd to 5th floors."
4. It appears that on a further representation of the appellant dated 8-1-1984, the Government issued Memo. No. 103/M1/84-1, M.A. dated 16-1-1984, deleting condition No. 3 above i.e. obtaining of prior consent of the owner of the building. Assailing the validity and legality of the orders of the Government the 1st respondent has filed the Writ Petition No. 10270 of 1985.
5. It was contended before the learned single Judge by the 1st respondent -- Writ Petitioner that under Section 12 of the Andhra Pradesh Urban Areas (Development) Act, 1975 (Act No. 1 of 1975), for short 'the Act', any modification as regards the 'land use' has to be made in conformity with Rule 13-A of the Urban Development Authority (Hyderabad) Rules, 1977 issued in G.O. Ms. No. 215 dated 1-4-1977, for short 'the Rules'. The Government have not complied with the mandatory requirement of Section 12 of the Act read with Rule 13-A of the Rules, and as such, the orders issued by the Government giving relaxation arc illegal. The contention of the Government, however, was that under Regulation 2.24 "owner" includes the lessee and, therefore, when the lessee has applied for relaxation, action was taken and relaxation was granted. When the lessee is the owner, obtaining the consent of the owner is not necessary, therefore, the issue of the G.O. and the Memo are perfectly legal. The learned counsel appearing for the 1st respondent--Writ Petitioner contended that Section 12 of the Act and Rule 13-A of the Rules would apply to the master plan and are inapplicable to individual plans or relaxation under the Zoning Regulations or the Multi-Storeyed Building Regulations. The Government is empowered under Regulation 12 of the Zoning Regulations and Regulation 19 of the Multi-Storeyed Building Regulations to relax the conditions, thereby, the relaxation of Regulation 6.1.2 of the Zoning Regulations is within the power of the Government. It is, therefore, contended that the orders are perfectly valid. In view of the above, the question that arose for consideration before the learned single Judge was, whether the impugned order relaxing Regulation 6.1.2 of the Zoning Regulations is in accordance with law or not.
6. The learned single Judge after considering the relevant provisions and the material on record held that the granting of relaxation in favour of the appellant was not proper and accordingly quashed the orders of the Government. Aggrieved by the same, the present appeal is filed.
7. The learned Senior Counsel Sri Anantha Babu appearing for the appellant contended that the Writ Petition No. 10270 of 1985 itself is not maintainable as there were laches on the part of the writ petitioner in approaching this Court. The orders of the Government were issued on 30-12-1983 and 16-1-1984, whereas the writ petition was filed on 12-9-1985. Normally, the writ petition has to be filed within six months and since there was a delay of more than one year, Sri Anantha Babu, contends that the writ petition is not maintainable.
8. Admittedly, the 1st respondent -- writ petitioner is not a party to the proceedings before the Government. No notice was issued to her before passing the orders impugned in the writ petition. It has to be noticed that in the orders issued in G.O. (RT) No. 1062 dated 30-12-1983, the Government have relaxed the Zoning Regulations subject to certain conditions which include that the owner of the land should also sign the application for the proposed additions in token of having approved the request of the appellant for the proposed additions to the existing ground floor and construction of 2nd to 5th floors. However, this condition was deleted by the subsequent orders of the Government dated 16-1-1984, thereby dispensing with the consent of the owner. It is not the case of the appellant that the orders of the Government were in fact communicated to the writ petitioner. Had there been such a communication to the writ petitioner of the orders of the Government, then, certainly, it is for the writ petitioner to explain the reasons for the delay in approaching this Court. But, it is the clear case of the writ petitioner that she was not a party before the Government and she was not issued any notice by the Government before the passing of the orders and it is only after she came to know about the orders of the Government, she filed the writ petition. We find force in the contention of the writ petitioner, particularly in view of the fact that she was not a party before the Government and she was not issued any notice by the Government before passing the orders. We, therefore, reject the contention of the learned counsel for the appellant.
9. Secondly, it is contended by the learned counsel for the appellant that the construction of the building is already completed and that the civil suits are pending between the parties and since the Civil Court had already refused injunction in favour of the writ petitioner, which was confirmed by the High Court, the writ petition is not maintainable.
10. There is no dispute that the civil suits are pending between the parties. It is relevant to mention here that O.S. No. 9 of 1976 is filed by the owner of the land for possession of the land on the ground that she terminated the agreement of lease. The suit O.S. No. 59 of 1976 is filed by the appellant for specific performance of the agreement of lease in favour of the appellant. Another suit O.S. No. 1052 of 1985 was filed by the writ petitioner for injunction. In none of the suits, the Government is a party and the relief claimed in the writ petition is not claimed in the above suits. When the Government is not a party to the suits and the civil litigation is pending only between the two parties, it cannot be said that the writ petition is not maintainable merely because the civil litigation is pending. The relief claimed in the writ petition is only to declare the exemption granted in favour of the appellant herein as illegal and in violation of the Zoning Regulations, 1981. Therefore, we are unable to accede to the contention of the learned counsel for the appellant.
11. It is thirdly contended by the learned counsel for the appellant that the grant of exemption is a power conferred on the Government as per Regulation 12 of the Zoning Regulations, 1981 and in exercise of that power, discretion is vested with the Government to relax any provisions of the Zoning Regulations, 1981. No procedure is provided how to exercise that power. When no procedure is provided, the Government has to follow the reasonable procedure and it need not necessarily follow the procedure laid down in any other Regulations or Rules. Learned counsel for the appellant, therefore, contends that the learned single Judge had erred in holding that the Government has to follow the procedure laid down under Section 12 of the Andhra Pradesh Urban Areas (Development) Act, 1975 read with Rule 13-A of the Urban Development Authority (Hyderabad) Rules. Mr. Vilas Afzulpurkar, learned counsel appearing for the 1st respondent-writ petitioner contended that the two Regulations i.e. Zoning Regulations, 1981 and the Multi-Storeyed Building Regulations, 1981, the provisions of which were given exemption, by virtue of the orders in G.O. Rt. No. 1062 dated 30-12-1983, are framed by the Government in exercise of the powers conferred by Sub-section (1) of Section 58 and Sub-section (1) of Section 59 of the Andhra Pradesh Urban Areas (Development) Act and both the regulations confer power on the Government to grant exemption from the provisions of the Regulations and as such when there is no procedure contemplated in the Regulations, one has to follow the procedure contemplated under the parent Act and the Rules made thereunder. Therefore, there is nothing wrong in the order of the learned single Judge.
12. To appreciate the above contention, it is necessary to refer to some of the provisions of the Act and the Regulations made thereunder. The Andhra Pradesh Urban Areas (Development) Act, 1975 has received the assent of the President of India on 20th January, 1975 and it has come into force from 27th January, 1975 when it was published in the Andhra Pradesh Gazette for general information. This is an act to provide for the development of areas in the State of Andhra Pradesh according to plan and for matters ancillary thereto. For each urban area or a group of urban areas, declared to be a development area, the Government, by notification shall constitute an Urban Development Authority for the said development area. Sub-section (1) of Section 58 of the Act empowers the Government to frame the rules to carry out the purposes of the Act. In exercise of such power, the Governor of Andhra Pradesh made the rules known as "The Urban Development Authority (Hyderabad), Rules, 1977". Similarly, Section 59 of the Act provides that the Authority may, with the previous approval of the Government, make regulations consistent with the Act and the Rules. By virtue of such power, the Bhagyanagar Urban Development Authority, with the previous approval, of the Government issued the Regulations known as ''The Bhagyanagar Urban Development Authority Zoning Regulations, 1981", approved in G.O. Ms. No. 916, M.A. dated 11-8-1981. Similarly, the Bhagyanagar Urban Development Authority issued the Regulations known'as "Multi-storeyed Building Regulations, 1981" which were approved by the Government in G.O. Ms. No. 917, Housing, Municipal Administration and Urban Development Department dated 11-8-1981. What the regulations should provide for are stated in Section 59 of the Act which includes the terms and conditions subject to which user of lands and buildings in contravention of plans may be continued (Clause (g)).
13. It is relevant to extract some of the provisions of the Act, Rules and the Regulations : Section 7 deals with Zonal Development plans and it postulates that simultaneously with 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 my be divided and Sub-section (2) thereof gives details which arc not material for the purpose of this case. Under Section 8, procedure has been prescribed for preparation and approval of plans and thereafter the Government have to approve the plans submitted by the Urban Development Authority under Section 9 and such approval would become operative under Section 10 immediately from the date when the plan has been approved by the Government and on its publication thereof, in the Gazette. Sub-section (1) of Section 12 gives power to Urban Development Authority to make modification and it encompasses within its ambit to the extent of land use also. Sub-section (2) thereof gives power to the Government which reads thus :
"The Government may suo motu or on reference from the Authority make any modification to the plan, whether such modifications are of the nature specified in Sub-section (1) or otherwise."
Rule 13-A of the Rules reads as follows :
" 13-A Modification to the master plan by the Government: (1) In case the Government desire to make any modification to the Master Plan under Sub-section (2) of Section 12 of the Act, a notification shall, after consultation with the authority, be published in the Andhra Pradesh Gazette in such form as the Government may deem fit inviting objections and suggestions from any person or local authority affected directly or indirectly with respect to the Master Plan proposed to be modified giving fifteen days time for the receipt of such objections and suggestions.
(2) Soon after the objections and suggestions are received by the Government, the Government may, if necessary, have local enquiries conducted and given an opportunity to the persons affected to state the objections before the modifications are approved and published in the Andhra Pradesh Gazette."
14. Regulation No. 6.1.2 and 12 of the Zoning Regulations, 1981 reads as follows :
"6.1. In these regulations , the land use shall be as per the following zones.:
I. Resdential -- Purely residential (R1) Residential with Shop line at Ground floor (R2) II. Commercial -- Local commercial (C1) District Commercial (C2) General Commercial (C3) III. Industrial -- Service Industry (I. 1) Dagh Industry (I. 2)".
Regulation 6.1.2 provides that the various buildings and occupancy uses to be permitted in these zones shall be as given in Appendix C. Under C.I.I. the following uses and accessory uses shall be permitted in buildings or premises in purely residential Zone :
(i) .....
(ii) ..... (iii) Public open spaces including playgrounds and parks, schools, shops, public and semi-public uses.
Under General Commercial C.5.1, the following uses and accessory uses shall be permitted in buildings and premises in General Commercial Zone :
(i) to (iv) ..... (v) Public utility buildings, newspapers and presses.
(vi) to (xix) .....
Regulation 12 of the Zoning Regulations gives powers to exempt which reads :
" 12. Power of Government to exempt:
The Government may, on an application, exempt any proposal for development of any site, sub-division, layout from any part of the provisions of these regulations subject to the following limitations which shall apply to all cases of buildings ........"
The above regulations have been subsequently amended. But, for the purpose of this case, the above regulation which existed as on the date the relaxation was granted is only relevant. Regulation 14(ii) of the Multi-storeyed Building Regulations, 1981 deals with the maintenance of certain measurements relating to the construction of a multi-storeyed building. Regulation No. 19 of the Multi-storeyed Building Regulations, 1981, which existed as on the date of relaxation was granted by the Government reads as follows "The Government may, on application exempt any of the provisions of these regulations and all except regulation Nos. 8, 10 (ii) and (iii) and II subject to the limitations (slated thereunder) which shall apply to all classes of buildings."
15. It is clear from the Zoning Regulations, 1981 that in places of residential areas, use of the land for construction of public utility buildings, newspapers and presses, which come under genera! commercial zone, is not permitted. However, Regulation 12 of the Zoning Regulations gives power to the Government to grant exemptions from such restrictions.
16. It is contended by the learned counsel for the 1st respondent according to Section 428 of the Hyderabad Municipal Corporation Act, where a person files an application for sanction of any plan, if he is not the owner, he has to obtain the consent of the owner and this is one of the mandatory requirements to be fulfilled before the application for sanction of plan is considered. Under the impugned G.O.Ms. No. 1062, the Government has granted exemption of the requirement of obtaining the consent of the owner in Clause 3 of the said G.O. It is to be noticed that when the Regulations and the M.C.H. Act require the consent of the owner, the granting of exemption by the Government, without any notice to the owner, is arbitrary. If the Government wanted to exempt the requirement of consent form the owner, before granting any exemption, it ought to have issued notice to the owner at least as per the requirement of principles of natural justice. Instead, the Government have arbitrarily deleted the condition of requirement of the conset of the owner. It is contended by the learned counsel for the appellant Sri Anantha Babu that as per Section 428 of the M.C.H. Act and the Zoning Regulations, even a lessee can be termed as owner if he is in possession of the land and he can also file the application for exemption and there is no requirement that the consent of the owner must be filed. In this connection, Section 2(e) of Act 1 of the 1975 which deals with the "development" reads as follows :
" 'development" with its grammatical variation means the carrying out of all or any of the works contemplated in a master plan, zonal development plan referred to in this Act, and the carrying out of building, engineering, mining or other operations in, on, over or under land, or the making of any material change in any building or land and includes redevelopment." The other part of the section is not necessary. Section 428, of the Municipal Corporation of Hyderabad Act reads as follows :
"428 : Notice to be given to Commissioner of intention to erect a building:-- (1) Every person who intends to erect a building shall give to the Commissioner notice of his said intention in a form, obtained for this purpose under Section 435, specifying the position of the building intended to be erected, the description of building, the purpose for which it is intended, its dimensions and name of the person who he intends to employ to supervise its erection."
17. Section 428 of the M.C.H. Act provides that where a person intends to erect a building, he has to give notice of the same in the prescribed form. The Municipal Corporation Building Bye-laws, 1981, deals with the procedure for obtaining building permits etc. The form prescribed for the purpose of filing an application for obtaining the permission for construction of the building is mentioned in Bye Law No. 3.2 of the M.C.H. Building Bye Laws and it says that the pro forma shall be as prescribed in Appendix 'A' of the Bye-laws, and such application shall be accompanied by such plans and documents as required by bye-law No. 4.2. The pro forma mentioned in Appendix 'A' under bye law No. 3.2, says that the application can be filed by the owner or the lessee of the land. Section 2(39) of the M.C.H. Act defines the term 'owner' as follows :
"2(39) : (a) 'owner' means :
(a) When used with reference to any premises, the person who receives, the rent of the said premises, or who would be entitled to receive the rent thereof, if the premises were let and includes--
(i) an agent or trustee who receives such rent on account of the owner;
(ii) an agent or trustee who receives the rent of, or is entrusted with, or concerned, for, any premises devoted to religious or charitable or educational purposes;
(iii) a receiver, sequestrator or manager appointed by any court of competent jurisdiction to have the charge of or to exercise the rights of an owner of the said premises; and
(iv) a mortgagee in possession; and x x x x x"
18. 'Owner' is also defined in Zoning Regulations, 1981 by Regulation No. 2.24 to the same effect as above. The above definition of 'owner' coupled with the pro forma application in Appendix 'A' of the Building Bye laws, make it clear that it is always open to the owner to file an application and where the lessee files an application, he must be empowered to file such application i.e., under the authorisation of the owner. That is why the requirement of obtaining the consent of the owner was contemplated in the first G.O. Ms. No. 1062. The permission for modification of the building also include the construction of the building. Where the owner's consent is dispensed with for giving permission for construction or modification of the building and if permissions for such constructions are granted on application filed by the lessee by the authority, then, the owner will have no knowledge of such modification or constructions and, in such case, there is the possibility of lessee making constructions contrary to the agreement between the lessor and the lessee. Therefore, it cannot be said that where the lessee is proceeding to make additions to the already existing building or proceeding to make new construction in the property taken on lease, the consent of the owner is not at all required and authorities can proceed without the consent of the owner for granting such permissions for modification or construction of the building. The owner must have the knowledge of the type of construction the lessee is going to make in the property and for that purpose the consent of the owner is necessary before the authorities grant the permission. Keeping in view the importance of the granting permissions particularly in the metropolitan cities, it is essential that notice must be given to owner before the authorities proceed to grant permission for such constructions. The law providing grant of such permissions viz., the building bye-laws which contains the pro forma has to be interpreted to mean that the owner can file an application for himself for making construction, but where the lessee files an application, it should be with the consent of the owner or with the authorisation of the owner. Otherwise, it will result in unreasonableness and deprivation of the owner's right to know the permission granted in respect of his or her property. Therefore, we are of the view that the relaxation granted in the impugned memo date 16-1-1984 deleting the condition of obtaining the consent of the owner is illegal and arbitrary.
19. It is next contended by the learned counsel for the appellant that the learned single Judge erroneously held that as there is no procedure provided under the Zoning Regulations, 1981 and Multi-Storeyed Regulations for granting exemption, the procedure prescribed under Section 12 of the Act read with Rule 13-A of the Rules has to be followed.
20. Admittedly, as rightly pointed out by the learned single Judge, there is no separate procedure provided under the Zoning Regulations as to how and in what manner applications for exemption under Regulation 12 of the Zoning Regulations, 1981 have to be considered. The learned Judge held that even though they relate to Master Plan since Zoning Regulations are integral part of the master plan, the procedure contemplated under Section 12 read with Rule 13-A has to be followed for grant of exemption under the Zoning Regulations, 1981.
21. As per Section 8 of the Act 'Plan' means Master Plan or the 'Zonal Plan'. As already stated Sub-section (2) of Section 12 of the Act empowers the Government to make modification of the plan in matters of effecting alteration to the plan and which relate to the extent of land uses. However, before making any such modification to the plan, the Government shall publish a notice inviting objections and suggestions from any person with respect to the proposed modification. The detailed procedure as regards the modification of plan is stated in Rule 13-A of the Rules. It postulates that the modification shall, after consultation with the Urban Development Authority, he published in the Andhra Pradesh Gazette in such form as the Government may deem fit inviting objections and suggestions from any person or local authorities affected directly or indirectly with respect the Master Plan proposed to be modified giving fifteen days time for the receipt of such objections and suggestions after receipt of such objections and suggestions by the Government, then the Government, may, if necessary, have local enquiries conducted and give an opportunity to the person affected to state their objections before the modifications are approved and published in the Gazette.
22. The main part of relaxation by virtue of G.O.Ms. No. 1062 relates to Regulation No. 6.1.2 of the Zoning Regulations. As per the Zoning Regulations, 1981, the area in which the disputed property is situated comes under residential zone. In residential zones, the uses and accessory uses that are permitted in buildings or premises are boarding houses, bachelor quarters, hotels, places of public worship, public open spaces including play grounds and parks, schools, shops, public and semi-public uses. As per C.1.1 of Appendix 'C' of Regulation 6.1.2, the uses and accessory uses permitted in buildings and premises in General Commercial Zone includes "Newspapers and Presses" which the appellant wanted to establish. Admittedly, as per C.1.1, of Appendix 'C' of the Regulations, the use of 'newspapers and presses' in residential zone is prohibited. Since the property is situated in a residential zone and the appellant wanted to establish printing presses to deal in publication of newspapers in the said property, there will definitely be change of land use as per the Act and for that purpose, it is necessary for the appellant to obtain the relaxation from the Government of the Zoning Regulations, 1981. If there is a change of land use in any zonal area, certainly it affects the Zonal Development Plan of the Zone and in turn it affects the Master Plan of the City itself. Therefore, if there is a change of land use, then, the Government have to proceed in accordance with Section 12 of the Act which empowers the Government to make modifications of the plan with respect to land use. Admittedly, since the proposed construction and alterations is not in accordance with the Zoning Regulations, 1981, the Municipal Corporation of Hyderabad sent a proposal for necessary relaxation to the Government. The Government without making any publication of the modification sought for and without inviting objections and suggestions from any person or local authorities affected directly or indirectly with respect to the change of land use, as required under Section 12 of the Act read with Rule 13-A of the Rules, has straightway accepted the recommendations of the Special Officer of the Municipal Corporation of Hyderabad and issued the impugned orders in G.O. RT. No. 1062, M.A. Dated 30-12-1983. There is no consultation with the Hyderabad Urban Development Authority either. Since there is a change of land use in the zonal area on account of the proposed additions and constructions by the appellant and consequently the master plan of the city itself and since the Zoning Regulations, 1981 are integral part of the master plan, the procedure contemplated under Section 12 of the Act read with Rule 13-A of the Rules has necessarily to be followed, even though the plan relates to an individual plan. This is what the learned single Judge has pointed out in the Judgment impugned. We are absolutely in agreement with the view taken by the learned single Judge.
23. Further, it is not disputed before us that no procedure is provided in either of the two regulations issued under the Urban Development Authority Act. Further, Section 59 of the Act says that the regulations to be issued by the authority, with the previous approval of the Government, shall be consistent with the Act and Rules. When no procedure is contemplated in the regulations for grant of any exemption, there is nothing wrong it the procedure contemplated in Section 12 of the parent Act read with Rule 13-A of the Rules, which are intended to carry out the purposes of the Act, is followed. The purpose of making Rules and Regulations, in exercise of the power conferred on the authorities is only to fulfill the objects and the purposes which Act I of 1973 has to carry out. Since the regulations framed in exercise of the powers conferred on the Urban Development Authority, by virtue of Section 59 of the Act, with the previous approval of the Government, did not provide for any special procedure for dealing with the applications made for exemption under Regulation 12 of the Zoning Regulations, 1981, for any purposes, including any modification by granting exemption, it is certainly permissible to follow the procedure contemplated under Section 12 of the parent Act read with rule 13A of the Rules, issued in exercise of the powers conferred under Section 58 of the Act and the same cannot be said to be illegal of invalid. We, therefore, do not see any ground to hold that the finding arrived at by the learned single Judge is not correct.
24. The learned counsel for the appellant contended that the two regulations framed under the Act are exclusive regulations and once the exclusive regulations do not provide any procedure, the procedure provided under any other Act or enactment cannot be applied. We are unable to accede to this contention. As already pointed out, in the absence of any procedure in the regulations, the proper and reasonable procedure to be followed is the procedure provided under the Act and rules framed under the Act. This is because the regulations framed under the parent Act should be consistent with the Act and Rules as contemplated in Section 59 of the Act. Further, the learned single Judge has only pointed out that the procedure provided under the parent Act should only be followed and not the procedure under any other enactment. When there is no procedure provided under the Regulations, if unbridled power is given to the Government to exercise the power of granting exemption, it would amount to defeating the very purposes and objects of the Act. To follow the procedure, other than the procedure under the parent Act, in our view, would be amounting to violating the reasonable procedure. The learned counsel for the appellant contended that by adopting for following the procedure laid down in any other enactment amounts to modifying the regulations and the same is not permissible. For this proposition, he has relied upon the decision of the Supreme Court in B.I.G. Insurance Co. v. Itbar Singh, wherein the Supreme Court held that the Court cannot add words to a section unless the section as it stands is meaningless or of doubtful meaning. There is no dispute about the proposition laid down in the above judgment. In the instant case, the question of adding words to any section of the Act does not arise. What the learned single Judge directed is that is the regulations did not provide any procedure, the procedure provided under the Rules has to be followed. Since the Zoning Regulations and the Rules were framed under the very same Act, there cannot be any objection to follow the procedure in the Rules since the main purpose of the Regulations and the Rules is only to carry out the objects and the purposes of the Act. The facts in the above case are different from the facts of the present case. Therefore, we do not find any merit in the contention of the learned counsel for the appellant.
25. Learned counsel for the 1st respondent Sri Vilas Afzulpurkar contended that the agreement entered into between the parties was cancelled , regarding which suits are pending in the Civil Court, and once the agreement to enter into lease is cancelled, the possession of the lessee is that of litigious possession, but not of legal possession. He, therefore, submitted that as notice of termination of agreement of lease had already been issued, the appellant's possession of the property would be litigious possession and therefore, it has no right to raise any constructions or to modify the existing constructions, without the consent of the owner. He has relied upon the judgment of the Supreme Court in R.V. Bhupal Prasad v. State of A.P., 1995 (3) SCC 698 : (1995 AIR SCW 3836). The facts of the above case are that the third respondent therein leased her property comprising a cinema theatre to the appellant therein for a period of twenty years by a lease deed and in furtherance thereof the appellant was running the exhibition of cinematography films in the theatre. The lease deed contained stipulations that after expiry of the lease period the lessee shall quit the property and deliver possession to the lessor. When the appellant sought for renewal of the licence for exhibiting the films, the 3rd respondent objected to the same. The licensing authority and the appellate authority had granted licence but in a writ petition filed by the 3rd respondent, the learned single Judge held that the appellant is not in lawful possession of the property and the same was affirmed in appeal. The Supreme Court held that the appellant may remain in possession until he is ejected in due course in execution of the decree in the suit filed by the respondent and his possession cannot be considered to be settled possession. The Supreme Court observed as follows :
"13. In view of the settled position of law, the possession of the appellant is as tenant at sufferance and is liable to ejectment in due course of law. But, his possession is not legal or lawful. In other words, his possession of the theatre is unlawful or litigious possession. The appellant may remain in possession until he is ejected in due course in execution of the decree in the suit filed by the respondent. His possession cannot be considered to be settled possession. He is akin to a trespasser, though initially he had lawful entry."
In view of this proposition, in the present case, the possession of the appellant is only that of litigious possession. Even then also, the consent of the owner is required for granting any relaxation or granting any modification of the construction.
26. Learned counsel for the appellant contended that since the appellant has got an agreement of lease, he has got a right to defend under Section 53-A of Transfer of Property Act and relied on the judgment of the Supreme Court in Maneklal v. H.J. Ginwalla and Sons, . There is no dispute about the the proposition laid down by the Supreme Court . The only question to be considered is whether the relaxation granted in favour of the appellant is proper or not. In our view, the facts of the above case are not applicable to the facts of the present case.
27. Sri Vilas Afzulpurkar contended that the modification of the building will amount to changing the master plan itself. We have already dealt with this issue. It is a fact that according to the Master Plan, the land is allotted for public and semi public purpose etc. in a residential area. Now, by changing the land use of the area for location of the printing press and machinery to deal in publication of news papers, there will be a definite change of the residential zone being converted into a commercial area and consequently it will amount to changing the Master Plan also. In K.R. Shenoy v. Udipi Municipality, the Supreme Court held that the grant of the permission in violation of the urban Planning Scheme is not proper and further held that it amounts to changing the master plan.
28. Thus, it is evident from the principles laid down by the Supreme Court that where area is earmarked for one purpose in the master plan and if the same is converted into for some other purpose by granting relaxation or exemption, it amounts to changing the master plan. Further, the purposes mentioned in the lease are different from the purposes now the appellant want to make use of the land. We are of the opinion that the grant of any relaxation or exemptions permitting construction of buildings for commercial purposes other than public and semi-public etc. in a residential zone amunts to changing the master plan under A.P. Urban Areas (Development) Act, 1975. So, Section 12 of the Act and Rule 13-A of the Rules arc attracted. We are, therefore, of the view that since the Zoning Regulations are integral part of the master plan, any relaxation of the zoning regulations must be in conformity with the master plan. We are of the view that since the area in which the disputed property situate is a residential area meant for public and semi-public purposes, and since it is sought to be converted into a commercial area by change of land use, it certainly affects the master plan and, in such circumstances, the procedure contemplated in Section 12 of the Act read with Rule 13A of the Rules arc necessarily to be followed before granting any relaxation.
29. In view of the foregoing reasons, we see no ground to interfere with the Judgment of the learned single Judge. Writ Appeal is, therefore, dismissed. No costs.