Telangana High Court
K.Krishna Chaitanya And 14 Others vs State Of Telangana And 5 Others on 7 September, 2022
Author: Lalitha Kanneganti
Bench: Lalitha Kanneganti
THE HON'BLE SMT. JUSTICE LALITHA KANNEGANTI
WRIT PETITION No.3995 of 2022
O R D E R:
This writ petition is filed seeking the following relief:
"to issue an Order, direction or a Writ or more particularly one in the nature of Writ of Mandamus declaring that the Lr.No. 738/MC/MNK/2021-22 dt.21.12.2021 of the 4th Respondent herein to hand over an extent of 1000 sq yards in Sy.No.126, 128 of Sports Park, Manikonda Municipality for construction of Reservoir to the General Manager Engineering, O&M Division-18, Manikonda, Hyderabad as arbitrary, illegal without jurisdiction and set aside the same and ...".
2. Mr. Koka Satyanarayana Rao, learned counsel for the petitioners submits that the petitioners are residents of Alkapoor Township, Manikonda which comes under the jurisdiction of Manikonda municipality. It is stated that there are five parks in the said locality and the sports park is one of them. The said park is developed by spending lakhs of rupees by the residents of the area for walking and sports use. It is stated that the Government issued G.O.Ms.No.288, MA & UD Department, dated 03.04.2008 in exercise of the powers conferred by Sub-Section (2) of Section 12 of A.P.Urban Areas (Development) Act, 1975. It is stated that as per the land use as open space zone, it is prohibited any building or structure which is not required for open air recreation dwelling units except for watch and ward. It is submitted that the respondent No.4 by proceedings dated 21.12.2021 handed over an extent of 1000sq.yards in Sy.No.126, 128 of sports park, Manikonda municipality for 2 construction of reservoir to the General Manager Engineering, O&M Division- 18, Manikonda, Hyderabad.
3. Learned counsel for the petitioners further submits that the respondent No.4 has no jurisdiction or authority to allot the said land for the purpose of construction of the reservoir. It is submitted that as per the law laid down by the Hon'ble Apex Court, when a particular place is earmarked for the park, the respondents have no authority or jurisdiction to alter the nature of the land. It is submitted that even as per the zonal regulations also, that space cannot be used for any other purpose.
4. He submits that as per the note of regulation in G.O.Ms.No.288, MA & UD (I1) Department, Dated 3.4.2008, on the sites specifically indicated as parks, playgrounds or Green Belt Project, no other activity except the specified use shall be allowed.
5. He submits that the entire park consists of 6120sq.yards, out of which an extent of 1000sq.yards has been allotted for the construction of reservoir. He submits that the residents of the locality are using the said park for the purpose of walking and it is a lounge space. It is submitted that in such a small space, they cannot construct the reservoir. It is submitted that this action of the respondents is contrary to the zonal regulations and contrary to the judgement of the Hon'ble Apex Court and to the orders passed by this court.
3
6. Learned counsel for the petitioners also relied on the judgement of the Hon'ble Apex Court in Bangalore Medical Trust Appellant v. B.S.Muddappa1 and others at Para Nos.31, 32 and 48 held as under:
"31-32. The impugned orders of the Government dated 27.5. 1976 and 11.6.1976 and the consequent decision of the BDA dated 14.7. 1976 are inconsistent with, and contrary to, the legislative intent to safeguard the health, safety and general welfare of the people of the locality. These orders evidence a colourable exercise of power, and are opposed to the statutory scheme".
48. Much was attempted to be made out of exercise of discretion in converting a site reserved for amenity as a civic amenity. Discretion is an effective tool in administration. But wrong notions about it results in ill-conceived consequences. In law it provides an option to the authority concerned to adopt one or the other alternative. But a better, proper and legal exercise of discretion is one where the authority examines the fact, is aware of law and then decides objectively and rationally what serves the interest better. When a Statute either provides guidance or rules or regulations are framed for exercise of discretion then the action should be in accordance with it. Even where Statutes are silent and only power is conferred to act in one or the other manner, the Authority cannot act whimsically or arbitrarily. It should be guided by reasonableness and fairness. The legislature never intends its authorities to abuse the law or use it unfairly. When legislature enacted Sub-section (4) it unequivocally declared its intention of making any alteration in the scheme by the Authority, that is, BDA and not the State Government. It further permitted interference with the scheme sanctioned by it only if appeared to be improvement. The facts, therefore, that were to be found by the Authority were that the conversion of public park into private nursing home would be an improvement in the scheme. Neither the Authority nor the State Government undertook any such exercise. Power of conversion or alteration in scheme was taken for granted. Amenity was defined in Section 2(h) of the Act to include road, street, lighting, drainage, public works and such other conveniences as the Government may, by 1 AIR 1991 SC 1902 4 notification, specify to be an amenity for the purposes of this Act. The Division Bench found that before any other facility could be considered amenity it was necessary for State Government to issue a notification. And since no notification was issued including private nursing home as amenity it could not be deemed to be included in it. That apart the definition indicates that the convenience or facility should have had public characteristic. Even if it is assumed that the definition of amenity being inclusive it should be given a wider meaning so as to include hospital added in clause 2(bb) as a civic amenity with effect from 1984 a private nursing home unlike a hospital run by Govt. or local authority did not satisfy that characteristic which was necessary in the absence of which it could not be held to be amenity or civic amenity. In any case a private nursing home could not be considered to be an improvement in the scheme and, therefore, the power under Section 19(4) could not have been exercised".
7. Learned counsel for the petitioners also relied on the judgement of the Hon'ble Apex Court in Virendra Gaur and others v. State of Haryana2 and others at Para Nos.1, 3 and 9 held as under:
".... The construction of the buildings had to be in accordance with section 203 while section 205 prohibited construction in contravention of the Scheme. Admittedly, in the Scheme, the land, the subject-matter of the lease for 99 years made in favour of the Punjab Samaj Sabha (for short 'the PSS'), was earmarked for open spaces....".
Having given our anxious consideration to the respective contentions, we are of the view that the action taken by the government is wholly without authority of law and jurisdiction and the sanction of land by Municipality for different use defeats the purpose and is in violation of law and the constitution". 2 1994 SUPPL. (6) SCR 78 5 ..... In para 23 of the judgment, this Court held that the Scheme is meant for the reasonable accomplishment of the statutory object which is to promote the orderly development of 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 ill-effects of urbanisation. It meant for the development of the city in a way that maximum space is provided for the benefit of me public at large for recreation, enjoyment, ventilation and fresh air. The statutory object 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 preservation of the character and desirable aesthetic features of the city. The subsequent amendments are not a deviation from or attention of the original legislative intent but only an elucidation or affirmation of the same. In paragraph 25 of the judgment, this Court further held that the reservation of open spaces for parks and playgrounds are universally recognised as a legitimate exercise of statutory power rationally related to the protection of the residents of the locality from the ill-effects of urbanisation. The residents of the locality are the persons intimately, vitally and adversely affected by any action of the BDA and the government which is destructive of the environment and which deprives them of facilities reserved for the enjoyment and protection of the health of the public at large....".
8. Learned counsel for the petitioners also relied on the judgement of the Hon'ble Apex Court in Dr. G.N.Khajuria and others v. Delhi Development Authority and others3 at Para Nos.7 and 8 held as under:
"7. We also do not entertain any doubt that at the site at which the school was allowed to be opened, there was a park. This is apparent from the report submitted by Director (Monitoring) to the Vice-Chairman of the Development Authority pursuant to his order dated 26.10.1992 which he came to pass on a reference being made to him by the Chief Secretary on 23.10.1992. The Chief 3 1995 (5) SCC 762 6 Secretary had passed the order on a representation made by some residents of Sarita Vihar, Pocket `A', complaining about unauthorised construction in Park No.6. The Director (Monitoring) visited the site on 2.11.1992 and found that a part of the park located in Pocket `A' had actually been enclosed with a boundary wall by an institution named Rattanatrya Educational Research Institute, which body is none else than respondent No.2. The report further says that the Institute was running a nursery school in a few temporary barracks constructed along with one of the boundary walls. On discussion with some office bearers of the Institute it was informed that the land in question measuring 800 sq. metres had been allotted to the Institute by the DDA in July 1988 for the purpose of running a nursery school. The Director (Monitoring) reported that the residents of surrounding areas started making objections when this Institute took up the construction of a regular school building after getting the plan duly sanctioned from the Building Department of the DDA. The report has categorically mentioned that in the original lay-out (which we understood to be of 1984) there was no provision for a nursery school in the park in question. Subsequently, however, some portion of the park was carved out for the nursery school. That such a park exists was sought to be proved by Shri Rao by producing certain photographs as well, one of which contains a sign board mentioning about "D.D.A. Park".
8. We, therefore, hold that the land which was allotted to respondent No.2 was part of a park. We further hold that it was not open to the DDA to carve out any space meant for park for a nursery school. We are of the considered view that the allotment in favour of respondent No.2 was misuse of power, for reasons which need not be adverted. It is, therefore, a fit case, according to us, where the allotment in favour of respondent No.2 should be cancelled and we order accordingly....".
7
9. Learned counsel for the petitioners also relied on the judgement of the Andhra Pradesh High Court in Bhagya Nagar Colony Welfare v. Government of A.P4 at Para Nos.13, 14 and 15 held as under:
"13. In Virender Gaur v. State of Haryana, Government of Haryana permitted the Municipality in Haryana to lease out open space to Punjab Samaj Sabha (PSS) for construction of Dharmashala. PSS was required to pay the lease amount to the Municipality. The land, which was ordered to be demised to PSS, was meant as a public amenity to the residents of the locality to maintain ecology, sanitation, recreation, playground and ventilation purposes. Though the land stood vested in the Municipality, the Government ordered the grant of lease for purpose of construction of Dharmashala. Residents of the locality approached the Punjab and Haryana High Court challenging the order of the Government unsuccessfully. On High Court declining to interfere, the respondents carried the matter to the Supreme Court. For the lessee, it was contended that under the Municipalities Act, it was permissible for the Municipality to lease out the land for charitable purpose, and, therefore, leasing out of open space in the layout is within the powers of the Municipality. The Supreme Court after referring to the Stockholm Declaration on Human Environment, 1972 and Article 48-A, while quashing the orders issued by the Government and ordering to pull down all the constructions made by Punjab Samaj Sabha and also directing the filing of the report by the Municipality, observed thus:
"The word 'environment' is of broad spectrum which brings within its ambit "hygienic atmosphere and ecological balance". It is, therefore, not only the duty of the State but also the duty of every citizen to maintain hygienic environment. The State, in particular, has duty in that behalf and to shed its extravagant unbridled sovereign power and to forge in its policy to maintain ecological balance and hygienic environment. Article 21 protects right to life as a fundamental right. Enjoyment of life and its attainment including their right to life with human dignity encompasses within its ambit, the protection and 4 2003 SCC OnLine AP 459 8 preservation of environment, ecological balance free from pollution of air and water, sanitation without which life cannot be enjoyed. Any contra acts or actions would cause environmental pollution. Environmental, ecological, air, water, pollution, etc., should be regarded as amounting to violation of Article
21. Therefore, hygienic environment is an integral facet of right to healthy life and it would be impossible to live with human dignity without a humane and healthy environment. Environmental protection, therefore, has now become a matter of grave concern for human existence. Promoting environmental protection implies maintenance of the environment as a whole comprising the man-made and the natural environment. Therefore, there is a constitutional imperative on the State Government and the Municipalities, not only to ensure and safeguard proper environment but also an imperative duty to take adequate measures to promote, protect and improve both the man-made and the natural environment."
The Supreme Court while referring to Bangalore Medical Trust v. B.S.Muddappa, and made the following observation:
"The land having been taken from the citizens for a public purpose, the Municipality is required to use the land for the protection or preservation of hygienic conditions of the local residents in particular and the people in general and not for any other purpose. Equally, acceptance of the argument of Shri V.C. Mahajan encourages pre-emptive action and conduct, deliberately chartered out to frustrate the proceedings and to make the result fait accompli. We are unable to accept the argument of fait accompli on the touchstone of prospective operation of our order.
14. In M.I. Builders Pvt. Ltd. v. Radhey Shyam Sahu, , Lucknow Nagar Mahapalika constructed underground shopping complex in a historic park known as Jhandewala Park situated at Aminabad Market, Lucknow. The same was challenged before the Lucknow Bench of Allahabad High Court, which held that the decision of Lucknow Municipality is illegal, arbitrary and unconstitutional. As M.I. Builders Pvt. Limited, which was entrusted with the work of construction of shopping complex had completed part of construction, it sought Special Leave and preferred Civil Appeal before the Supreme Court.9
The Supreme Court affirmed the view of Lucknow Bench of Allahabad High Court and also directed to dismantle and demolish all the constructions made in the public park and also restore the place as a park to its original shape. The Apex Court observed as under:
"As said earlier, High Court rightly exercised its power of judicial review in the present case. It has examined the manner in which the decision was made by the Mahapalika. Second principle laid in Tata Cellular's case applies in all respects. High Court held that the maintenance of the park because of its historical importance and environmental necessity was in itself a public purpose and, therefore, the construction of an underground market in the garb of decongesting the area was wholly contrary and prejudicial to the public purpose. By allowing the construction Mahapalika had deprived its residents as also others of the quality of life to which they were entitled to under the Constitution and the Act. The agreement smacks of arbitrariness, unfairness and favouritism. The agreement was opposed to public policy. It was not in public interest. Whole process of law was subverted to benefit the builder. We agree with the findings and conclusions of the High Court."
15. In Co-operative Housing Society, Saleemnagar Limited v. MCH (supra), a Division Bench of this Court, to which I was a Member, considered the question whether construction of a school building in the area earmarked for park at the behest of the Hyderabad Municipal Corporation is justified. The building permission granted by the Municipal Corporation of Hyderabad to a minority educational institution for construction of building was subject-matter of the writ petition before the Division Bench. This Court referred to Bangalore Medical Trust v. B.S. Muddappa (supra), M.I. Builders Pvt. Ltd. v. Radhey Shyam Sahu (supra) and also a judgment delivered by me in NGOs Colony Development Committee v. District Collector, Krishna, Machilipatnam, and categorically laid down as under:
"The answer to the said question must be rendered in the negative. Right to clean environment is a part of the fundamental right under Article 21 of the Constitution of India. The land earmarked for park cannot be converted or changed into land for other purposes. If the Corporation had no jurisdiction to 10 grant permission for construction of the building in a park, no amount of consent can validate the invalidity. The order of the Corporation was a nullity. The Corporation being a statutory authority must exercise its jurisdiction within the four corners of the statute. Any action taken beyond the power by Corporation shall be ultra vires".
10. Mr. N. Praveen Kumar, learned standing counsel for the municipal corporation has filed counter affidavit on behalf of respondent No.4. He submits that as per the authority vested with the respondent corporation and taking into consideration the representation of the people where the municipality is not able to cater the needs of the growing population in the locality, basing on the request made by the respondent No.5, they have allotted the land for construction of the water tank. He submits that the said allotment of the land is also not contrary to the zonal regulations. He has drawn the attention of the Court to G.O.Ms.No.288, MA & UD (I1) Department, Dated 3.4.2008 and in that, Annexure-I Para No.6 deals with Public Utilities.
11. Learned standing counsel further submits that even in the residential zone also water supply installations are permitted and Para 6 deals with Public Utilities where the usage of land permitted includes water supply, drainage, storm water, solid waste disposal, electricity communication systems and related installations, parking lots, public utility buildings.
12. Learned standing counsel submits that the petitioner is relying on the said note in G.O.Ms.No.288 with regard to the open space zone where it is said 11 that in the open spaces that are earmarked for parks, playgrounds or Green Belt projects, no other activity except specified use shall be allowed. It is submitted that as far as the public utilities is concerned, the water supply, drainage, storm water and others what are specified as public utilities, they are permitted to do.
13. Apart from that, he submits that there is a existing water tank which has in the capacity of 500KL is not in a position to cater the needs of the people, as such, in the larger public interest, they have considered the request made by the respondent No.5 and allotted the land.
14. The learned standing counsel relied on the judgement of this court in W.P.No.35251 of 2017 dated 25.03.2019 where a similar issue fell for consideration and this court has held that the larger public interest is a paramount consideration and has dismissed the said writ petition.
15. Mr. T. Sudhakar Reddy, learned standing counsel for HMWS &SB - respondent Nos.5 and 6 has filed counter affidavit before this court and he submits that the capacity of the proposed reservoir is about 2500KL and the reservoir is designed to cater the drinking water needs of about 15000 consumers. He submits that the said area is witnessing rapid development with multi storied constructions coming up and there being shortage of drinking water for the residents of the area, keeping in view of the larger public interest of catering to drinking water needs of the present as well as in future 12 residents of the area, the Government has sanctioned funds for construction of reservoir.
16. He has also placed before this court the population projections over the three design horizons. He has also relied on the judgement of the Hon'ble Supreme Court in case of T.N.Godavarman Thirumalpad v. Union of India5, wherein it is held as under:
"35. It cannot be disputed that no development is possible without some adverse effect on the ecology and environment, and the projects of public utility cannot be abandoned and it is necessary to adjust the interest of the people as well as the necessity to maintain the environment. A balance has to be struck between the two interests. Where the commercial venture or enterprise would bring in results which are far more useful for the people, difficulty of a small number of people has to be bypassed. The comparative hardships have to be balanced and the convenience and benefit to a larger section of the people has to get primacy over comparatively lesser hardship".
17. He submits that the judgements that are relied on by the learned counsel for the petitioners do not apply to the facts and circumstances of this case where the purposes for which the nature of the land was altered or the constructions that were coming up there were not in the larger public interest. In fact, in one of the case, it is a private Nursing Home. He submits that even if this particular reservoir is constructed, the lung space or the purpose for which they are utilizing the said park will not be affected. It is stated that as 5 (2002) 10 SCC 606 13 the petitioners have approached this court and obtained an order of status- quo, the entire construction activity is stalled, which is causing lot of inconvenience to the residents of the said area for whose purpose the reservoir is going to be constructed.
18. Implead petition is filed on behalf of a resident of Alkapur Township and a counter affidavit is also filed by the writ petitioners denying that the implead petitioner is a resident of the said locality. Mr. S. Ram Babu, learned counsel appearing for the implead petitioner submits that the petitioners purposefully mixed the aspect of residential zone and open space zone and also mislead this court. It is submitted that even in the open space zone, certain constructions to the extent of 15% are permissible. He submits that the allotment made by the respondents is within the parameters of the G.O.Ms.No.288. Apart from that, the larger public interest plays a predominant role. He submits that as there is no water supply, they are dependent upon the water tanks which is causing lot of hardship as well as financial burden on the people of the locality. He submits that without a valid reason, without any injustice or inconvenience caused to the petitioners, the petitioners have approached this court and writ petition has to be dismissed.
19. Petitioners have approached this court questioning the allotment made by the municipality, the land of an extent of 1000sq.yards in favour of respondent No.5 for construction of a reservoir. The first ground that is raised 14 before this court is that when a space is earmarked as a park, the nature of the land cannot be altered and the second is that the construction of a reservoir is contrary to the zonal regulations. Except making these two grounds, the petitioners could not submit before this court what is the great hardship caused to the petitioners by construction of a reservoir.
20. The petitioners are residents of the locality and by construction of a reservoir, not only the petitioners, all the residents of the said area are benefited. Secondly, it is not even the case of the petitioners that by virtue of construction of this reservoir, they won't be in a position to use the park for the purpose of walking and other purposes.
21. Admittedly, the park is in a vast extent of land admeasuring 6120 sq.yards. In that, only an extent of 1000sq.yards is allotted to the respondent No.5 for construction of a reservoir. Apart from that, it is also an admitted fact that there is a small water tank of 500KL is existing in the said land. According to the petitioners, that is not in operation. Whether it is operational or not, by virtue of this allotment to the respondent No.5 for construction of a reservoir, at any stretch of imagination, it cannot be said that it is causing any inconvenience to the petitioners.
22. More so, it appears that by filing this writ petition, the petitioners have not only stalled the construction of the reservoir, but also caused lot of inconvenience and injustice to the residents of the said locality of about 15000 15 consumers for whose purpose, the reservoir is designed. Apart from that, coming to the legal aspect i.e. change of the zonal regulations, particularly looking at the G.O.Ms.No.288, even under the MA & UD (I1) Department, Dated 3.4.2008, as per Annexure-I, Clause-4 i.e. Public and semipublic zone and Clause-6 i.e. Public utilities, water supply installations are permissible in the said specified land. Whereas the petitioners looking at Clause-7 i.e. Open space zone submits that the same cannot be altered except for the purpose of parks, playgrounds or green belt projects and that no other activity can be done. The purpose to be achieved by virtue of this zonal regulations when a particular place is earmarked is that it should be utilized for the same purpose. The purpose that is sought to be achieved is in the larger public interest, the construction of the reservoir cannot be stopped or stalled as that is not acceptable for a few individuals. There is no illegality in allotting the land for construction of reservoir.
23. Hence, this court finds no reasons to set aside the proceeding dated 21.12.2021 of the respondent No.4. Accordingly, the writ petition is dismissed. There shall be no order as to costs.
The miscellaneous applications, if any shall stand automatically closed.
___________________________ LALITHA KANNEGANTI, J 7th September, 2022 gvl