Telangana High Court
M/S. Fair Fields Plot Owners Welfare ... vs The Hyderabad Metropolitan ... on 4 March, 2025
Author: K. Lakshman
Bench: K. Lakshman
HON'BLE SRI JUSTICE K. LAKSHMAN
WRIT PETITION No.17797 of 2009
ORDER:
Heard Sri V. Gopal Rao Amanacharla, learned counsel appearing for the petitioner, Sri V. Narsimha Goud, learned Standing Counsel
appearing for respondent Nos.1 and 2, Sri Laxmaiah Kanchani, learned Standing Counsel appearing for respondent No.7. Perused the record.
2. Petitioner herein is a registered society registered under the provisions of the Telangana Societies Registration Act, 2001 vide registration No.1016 of 2009. Owners of plots / houses/ villas are the members of the petitioner's association.
3. M/s. Fair Fields, a company, developed land admeasuring Ac.7-37 gts., in Sy.Nos.1 to 6, 15, 16 and 47P of Neknampur village, Rajendranagar Mandal on obtaining permission No.16/MP/2/4/03 on 27.02.2003.
KL,J W.P.No.17797 of 2009 2 It was for development of a gated community. The said company developed layout as a gated community with two model houses along with a room for the Welfare Association in plot No.29, Sy.No.1 to 6, 15, 16 and 47P, Neknampur village. The said lay out was fenced at the time of approval by obtaining necessary permission. At the time of approval by respondent No.1 - HMDA, respondent No.1 has allocated certain areas for common public utility such as park, septic tanks, overhead water tank, garbage centers, etc., in the final layout. The members of the petitioner society purchased plots from the said company under valid registered sale deeds.
4. Respondent No.1 - HMDA informed respondent No.3
- the then Gram Panchayat, Neknampur about the approval and the areas earmarked for the purpose of common public utilities such as park, septic tank, overhead water tank, garbage centers, etc. The said areas earmarked are under the control and custody of KL,J W.P.No.17797 of 2009 3 respondent No.3 - the then Gram Panchayat, Neknampur and the petitioner association since 2003.
5. It is further contended by the petitioner that the Village Secretary in collusion with the Sarpanch of Neknampur Grampanchyat is trying to encroach into the common areas earmarked for the purpose of common utility for the resident's welfare association and is trying to create third party interest by alienating the same. Therefore, they have submitted a representation dated 12.08.2008 to all the respondents with a request to stop the said construction. They have not stopped the construction. Therefore, petitioners have filed the present writ petition to declare the action of respondent Nos.1 to 4 in not restraining respondent Nos.5 to 6 from interfering and encroaching into the common utility places earmarked for the purpose of petitioner's association, as illegal and consequently direct the respondents to remove the structures, if any, made in the KL,J W.P.No.17797 of 2009 4 said open place earmarked for the purpose of common utility in the layout.
6. Respondent No.3 - Panchayat Secretary, the then Gram Panchyat, Neknampur filed counter admitting about the aforesaid layout issued by respondent No.1. It is contended that basing on the approved layout by the then HUDA, petitioner association has registered a gift deed in respect of four open spaces in favour of Neknampur Gram Panchayat, vide registered gift deed bearing document No.9193 of 2003, dated 10.12.2003. Thereafter, the HMDA released the said final layout. On registration of the said gift deed, the common public utility spaces, such as park, septic tanks, overhead water tank, garbage centers, etc., are vested with the Gram Panchayat. The petitioner has no right over the said public places.
7. It is also contended that the Mandal Parishad, Rajendra Nagar has proposed to construct Anganwadi KL,J W.P.No.17797 of 2009 5 building at Neknampur village. Accordingly, an amount of Rs.3,00,000/- was sanctioned under the Mandal Parishad Grants. Technical sanction was also issued by the Executive Engineer, Panchayat Raj Department, Hyderabad vide SDR.No.T6/2008, dated 04.11.2008. The work was entrusted to Mr.D. Prathap Reddy, VLCP on nomination basis as per the orders of the Mandal Parishad Development Officer, Rajendranagar. Accordingly, space which is earmarked for the purpose of public utility has been identified and work has commenced by the contractor. The construction is at the slab level. Pursuant to the status quo orders granted by this Court, construction has been stopped. Thus, the petitioner has no locus to file the present writ petition and the aforesaid construction of Anganwadi building is for the public purpose. With the aforesaid contentions, respondent No.3 sought to dismiss the present writ petition.
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8. It is also relevant to note that the Gram Panchayat, Neknampur was merged into Manikonda Municipality i.e., respondent No.7 herein.
9. Respondent No.7 filed counter in the aforesaid lines. It is further contended that except Anganwadi School there are no encroachments as alleged in the writ affidavit. Anganwadi School, is also for the benefit of children of the local residents. The said building is constructed for the public purpose. Therefore, the petitioner has no locus to file the present writ petition. With the said contentions, respondent No.3 sought to dismiss the present writ petition.
10. Petitioner has filed reply to the counter filed by respondent No.7 contending that respondent cannot construct Anganwadi School in the open space earmarked for the purpose of park within the petitioner's layout. The same is illegal. It has also placed reliance on the principle laid down by the Hon'ble Apex Court in KL,J W.P.No.17797 of 2009 7 Dr.G.N. Khajuria and others v. Delhi Development Authority and others1, Anjuman E. Shiate Ali v. Gulmohar Area Societies Welfare Group2 and also in P. Venkateshwarlu and another v. Secretary, Municipal Administration, Hyderabad and others (unreported common order of a Division Bench of this Court dated 04.10.2023 in W.P.Nos.12538 of 1999 and 25738 of 1997).
11. It is relevant to note that the petitioner association has filed a Memo across the Bench along with resolution of the association stating that the petitioner association will use the said building for its activities.
12. The afore-stated facts would reveal that the subject construction was made by the then Gram Panchayat i.e., respondent No.3 for the purpose of Anganwadi school. An amount of Rs.3,00,000/- was sanctioned by the Mandal Parishad, Rajendranagar. There was also technical 1 (1995) 5 SCC 762 2 AIR ONLINE 2020 SC 473 KL,J W.P.No.17797 of 2009 8 sanction by the Executive Engineer, Panchayat Raj Department, Hyderabad, on 04.11.2008. The construction work was entrusted to Mr. D. Pradeep Reddy, VLCP on nomination basis.
13. In the counter filed by respondent No.3, it is stated that when the construction was at slab level, this Court granted status quo orders. Therefore, construction has been stopped. Petitioner has filed photographs of the subject construction and perusal of the same would reveal that the same was at slab level.
14. Whereas, respondent No.7 has filed counter along with photographs to show that the building has been completed and it is using for Anganwadi centre No.1. Even in the counter filed by respondent No.7, it is stated that construction has been completed and it is using for the purpose of Anganwadi School, which is also a public purpose. The said Anganwadi School is beneficial for the children of local residents.
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15. Thus, the subject construction was completed in violation of the status quo order granted by this Court on 26.08.2009. The afore-stated facts would reveal that admittedly the subject building was constructed in the space earmarked for the purpose of park.
16. In P. Venkateshwarlu and another v. Secretary, Municipal Administration, Hyderabad and others (unreported common order of a Division Bench of this Court dated 04.10.2023 in W.P.Nos.12538 of 1999 and 25738 of 1997), on examination of the facts of the said case, where 600 square yards of land was earmarked for the purpose of park, it was allotted for construction of commercial building, permission was also accorded. Considering the said aspects and also 'doctrine of public trust' and also the principle laid down by the Hon'ble Apex Court in several judgments, summarised proposition of law and the Division Bench issued the following directions:
"In view of preceding analysis, the following directions are issued:
KL,J W.P.No.17797 of 2009 10 i. Permit No.50/49 of 1996 dated 03.01.1997 granted in favour of Indian Airlines Employees Housing Society by the Municipal Corporation of Hyderabad in File No.10/TP7/CCP/96 for construction of commercial complex on the land reserved for park in survey No.194/11, Paigah Lands, Begumpet, Ranga Reddy District, is set aside and quashed.
ii. The respondent Nos.5 and 6 in W.P.No.12538 of 1999 (Mr. P.Ravi Kumar and Mr. M.F.Peter) are directed to carry out the work of demolition of commercial complex constructed on land measuring 600 square yards in survey No.194/11 in plot Nos.S1 and S2 in Indian Airlines Housing Colony, Begumpet, Ranga Reddy District.
iii. The aforesaid demolition work shall be carried out by respondent Nos.5 and 6 in W.P.No.12538 of 1999 at their own cost under the supervision of officials of Telangana Housing Board and Hyderabad Metropolitan Development Authority (HMDA).
iv. The Hyderabad Metropolitan Development Authority (HMDA) shall nominate an expert under whose overall supervision the demolition work shall be carried out by respondent Nos.5 and 6 in W.P.No.12538 of 1999.
v. The entire expenses including the cost of demolition and incidental expenses including the fee payable to the expert nominated by the officials of HMDA shall be borne by respondent Nos.5 and 6.
vi. The respondent Nos. 5 and 6 in W.P.No.12538 of 1999 shall carry out the demolition work within KL,J W.P.No.17797 of 2009 11 a period of three months from the date of this order.
vii. HMDA is directed to develop the land measuring 600 square yards in survey No.194/11 in plot Nos.S1 and S2 in Indian Airlines Housing Colony, Begumpet, Ranga Reddy District as a park, and viii. Needless to state that occupants, if any, of the building shall be at liberty to take recourse to the remedy available to them in law, with regard to their grievance against respondent Nos.5 and 6 in W.P.No.12538 of 1999."
Thus, the Division Bench having held the permission and said action as illegal and directed the HMDA to demolish the said construction.
17. In Dr. G.N. Khajuria's case cited supra, the Hon'ble Apex Court held that the land reserved for park in a residential colony cannot be allotted for Nursery School and the Hon'ble Apex Court also directed the said building to be demolished by shifting the students.
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18. In Anjuman's case cited supra, the Hon'ble Apex Court held that the land earmarked for open spaces cannot be used for any other purpose.
19. In the light of the aforesaid principles, as discussed supra, in the present case, the said building was constructed in open space earmarked for park. Vide order dated 26.08.2009, this Court directed the parties to maintain status quo. Even then, the said building was constructed and they are using it for the purpose of Anganwadi Centre No.I in Neknampur village. Thus, the said construction is in violation of the said order.
20. It is the specific case of the petitioner that the entire property was fenced, they have already constructed houses and they are residing in their respective houses. It is also the specific allegation of the petitioner herein that the said building was constructed without prior permission from the then Gram Panchayat, Neknampur village. Therefore, the then Gram Pancchayat, KL,J W.P.No.17797 of 2009 13 Neknampur village cannot construct school building without obtaining permission and in violation of the status quo order granted by this Court on 26.08.2009.
21. Respondent No.7 - Municipality cannot contend that the said building is utilizing for public purpose. The said contention of respondent No.7 is un-sustainable. The subject property is earmarked for the purpose of park and nobody can use the same for any purpose other than park without seeking amendment to the permission dated 27.02.2003. Therefore, the entire action of the then Gram Panchayat, Neknampur village (respondent No.3) and respondent No.7 - Municipality is illegal and violation of order dated 26.08.2009 passed by this Court.
22. Petitioner herein also cannot claim that it will use the said building for the purpose of its association activities.
23. In the light of the aforesaid discussion, this Writ Petition is disposed of directing respondent No.7 -
KL,J W.P.No.17797 of 2009 14 Municipality to demolish the subject building within three (3) months from the date of receipt of a copy of this order by shifting the students, if any, to the alternative school / centre and develop park in the said land.
As a sequel thereto, miscellaneous petitions, if any, pending in the Writ Petition shall stand closed.
__________________ K. LAKSHMAN, J 04th February, 2025 PN