Andhra HC (Pre-Telangana)
P. Venkateswarlu vs Govt. Of Andhra Pradesh And Ors. on 16 October, 2001
Equivalent citations: 2001(6)ALD533, 2002(2)ALT791
Author: S.B. Sinha
Bench: S.B. Sinha
JUDGMENT S.B. Sinha, C.J.
1. These writ petitions involving common questions of fact and law were heard together and are being disposed of by this common judgment.
2. The controversy in these writ petitions centers around the action of respondents 1 to 4 in permitting respondents 5 and 6 to construct commercial complex in land admeasuring 600 square yards, which was earmarked for a park, in Plot Nos. S1 and S2 of Indian Airlines Housing Colony located in Survey No. 194/11 of Begumpet village, Rangareddy District.
Facts in briefs
3. The facts as stated in Writ Petition No. 12538 of 1999, which is filed in public interest, are being considered for the purpose of deciding the questions involved.
4. The Government has acquired an area of Ac.12.24 guntas in Survey No. 194/11 (Part) of Begumpet village by issuing a notification under Section 4(1) of the Land Acquisition Act on 10-6-1975 and invoking urgency clause for the purpose of constructing houses for staff of Indian Airlines. In 1985, the layout was sanctioned by the Hyderabad Urban Development Authority. By G.O. Rt. No. 4 (Housing) dated 20-2-1986, the Government had accorded permission to the A.P. Housing Board to take up construction of 159 houses. A sale deed in favour of the petitioner was executed on 22-6-1996. The colony was named as Indian Airlines Employees Housing Colony. According to sanctioned lay out an open space of 600 square yards was earmarked for park in the said colony. While so, respondents 7 and 8, being office bearers of a self-styled Managing Committee of the above housing colony, said to have sold 600 square yards to respondents 5 and 6 through a registered sale deed on 12-6-1996. On 29-8-1996, respondent No. 7 appears to have applied to respondents 3 and 4 for construction of a commercial complex and on 3-1-1997 the 4th respondent accorded sanction, however, with some conditions.
5. In short, the grievance of the petitioner is that the action of respondents 1 to 4 in permitting respondents 5 to 8 for constructing multi-storeyed commercial complex in the open space reserved for park, according to sanctioned layout, is illegal. The petitioner prays to direct respondents 3 and 4, by demolishing the structure raised in the said land by respondents 5 and 6, to lay a public park.
6. Writ Petition No. 25738 of 1997, in public interest, is filed to declare the permit No. 50/49 of 1996 granted by first respondent in favour of 5th respondent in respect of park area in Survey No. 194/11, Paigah lands, Begumpet as illegal and to direct the respondents to develop the park by demolishing all illegal structures raised therein by the 5th respondent.
Background:
7. On 20-6-1974, the Andhra Pradesh Housing Board sought permission of the State Government for acquiring Ac.15-19 guntas of land at Begumpet, Hyderabad for constructing a housing colony for staff of Indian Airlines. By reason of G.O. Ms. No. 132, Health, Housing and Municipal Administration Department, dated 28-12-1974, the Government had permitted the A.P. Housing Board to acquire before 31-12-1974 the land not exceeding Ac.15-19 guntas belonging to Paigah of Sri Viqarul Umra at Begumpet, Hyderabad as a special case for the purpose of constructing a housing colony for the staff of the Indian Airlines, On 10-6-1975 a notification under Section 4(1) of the Land Acquisition Act was issued and the land was acquired. In 1984, the Hyderabad Urban Development Authority sanctioned layout, at the request of the Housing Board, wherein an area of 600 square yards abutting S.P. Road was earmarked for park. By G.O. Rt. No. 4 (Housing) dated 20-2-1986, the Government had accorded permission to the A.P. Housing Board to take up construction of 159 houses. On 10-4-1987, alleged revision of layout of Housing Board took place and the area earmarked as park in 1984 layout was shown as the land for commercial use and numbered as S1 and S2. On 5-10-1988, the Housing Board, allegedly, authorised respondents 7 and 8, who are said to be Secretary and Chairman of the Managing Committee of the colony to sell the plots S1 and S2 to respondents 5 and 6. On 12-6-1996, two sale deeds were executed by respondents 7 and 8 in favour of respondents 5 and 6. The Housing Board, however, denied the authorisation to respondents 7 and 8 to sell the said plots. On 24-8-1998, respondent No. 7 applied for building permission to the first respondent. On 26-12-1996, respondents 7 and 8 gave an undertaking to the Municipal Corporation that in case the land is later found to be park, permission granted by it will be deemed to be cancelled. On 3-1-1997, the Municipal Corporation had granted permission to construct cellar and three floors on the condition that if it is found at later date to be park or open space, permission stands cancelled. Respondents 5 and 6 completed the construction of commercial complex between 1997 and 1999. On 16-10-1999, deed of rectification was executed by respondents 7 and 8 in favour of respondents 5 and 6 correcting the sale deeds dated 12-6-1996 by substituting S1 and S2 in place of A.159 and A.160.
8. On 1-8-2000 this Court in Writ Petition No. 12538 of 1999 directed the 1st Addl. Chief Judge, City Civil Court, Secunderabad to conduct enquiry on the point whether the site in dispute was earmarked as park in the layout. On 18-8-2001, report was submitted by the Enquiry Officer to the effect that in the original layout the site in dispute was earmarked for park but later the Housing Board revised the layout.
Submissions:
9. Mr. N. Subba Reddy, learned senior Counsel appearing on behalf of Mr. M. Krishnamohan Rao, learned Counsel for the writ petitioner would submit that it is an admitted fact that in the original layout the site in dispute was earmarked for park and the residents of the colony have not formed themselves into a society. The learned Counsel would further submit that respondents 7 and 8 purporting to have been authorised by the Housing Board have sold the site through two registered sale deed, but the Housing Board denied the said authorisation.
10. The learned Counsel would contend that the Hyderabad Urban Development Authority is competent to approve the layouts and not the Housing Board. He would further contend, even if it is assumed for the sake of argument that the Housing Board had revised the layout, and the finding of the Enquiry Officer that the Housing Board has received the layout is accepted, the said action of the Housing Board conferring right on respondents 5 to 8 over the land in question is erroneous and the same is not sustainable.
11. Mr. J. Prabhakar, learned Counsel appearing on behalf of second respondent-Housing Board would submit that it did not authorise respondents 5 and 6 to erect a complex in the site in dispute. The learned Counsel would contend that the open spaces and parks are the properties of the Housing Board and no individual can deal with them. The learned Counsel however submits that the Housing Board, having come to know of irregularities on the part of its certain staff members and of outsiders, is taking appropriate steps against all concerned.
12. The learned Counsel appearing on behalf of Hyderabad Urban Development Authority-3rd respondent herein would submit that while granting layout the Authority had shown six blocks as open spaces. He would further submit that on a complaint given by some of the employees, the officers of the Authority inspected the site and found certain encroachments in open land and in July, 1997 the Authority had called for the remarks from the Municipal Corporation as to the encroachments in the layout so as to take further action. He would also submit that construction of commercial building with complete framework for cellar and pillars raised for ground floor was found in one block of open space.
13. It is also submitted on behalf of respondent No. 3-HUDA, that since the site in question falls under, the jurisdiction of Municipal Corporation, the Municipal Corporation is the custodian of the open area earmarked as "park" and HUDA is not competent to take action against unauthorised constructions that took place within the jurisdiction of Municipal Corporation.
14. The learned Standing Counsel appearing on behalf the Municipal Corporation-4th respondent herein would submit that the layout belonging to Indian Airlines Employees Housing Society was approved by HUDA and the Corporation granted permission in favour of seventh respondent for construction of commercial complex having regard to the revised layout plan approved by the second respondent-Board. The learned Counsel would further submit that an undertaking was given by the seventh respondent to the effect that if the land is found to be meant for park or open space, the permission granted shall be automatically deemed to be cancelled.
15. The learned Counsel appearing on behalf of respondent No. 6, would contend that there is no public interest involved in the writ petition. He would submit that according to the revised layout of the Housing Board, the site was earmarked for shops. He would further submit that the Committee of Indian Airlines Welfare Association on obtaining consent from all the members, including the petitioner herein, passed a resolution on 10-6-1996 approving for sale of the site in question to one R. Satya Kumar and sixth respondent herein and accordingly sale deeds were executed on 12-6-1996.
16. The learned Counsel appearing on behalf of respondents 7 and 8 would submit that respondents 7 and 8 were elected as Secretary and Chairman of the Managing Committee of the A.P. Housing Board Housing Scheme for Indian Airlines Employees and the houses were completed by 1989 and the Housing Board had made allotments to the employees of Indian Airlines on 12-2-1989. He would further submit that as per layout the site in question, measuring about 722 square yards and being Plots S1 and S2, was earmarked as a park and out of 722 square yards of land an area of 233 square yards was given in exchange to one Nawab Eqtedarajuddin Khan and three others and the remaining area was 489 square yards. The learned Counsel would also submit that the Housing Board submitted a revised layout plan to the authorities and the area of 489 square yards being small extent was utilised for construction of a complex and permission was accordingly obtained from the Municipal Corporation.
17. The learned Counsel would contend that the money realised from the sale of the plots S1 and S2 were deposited in the account of the Managing Committee and are being utilised for development and other welfare programmes in the colony and the writ petitions are filed in the nature of public interest litigation only to settle personal scores as the petitioner in WP No. 12538 of 1999 having contested in elections of the Committee against respondent No. 7 was defeated.
Questions:
18. In view of the submissions made by the respective parties, the following questions arise for consideration :
1. Whether, in fact, the Housing Board has indeed revised in 1987 the layout approved by HUDA in 1984.
2. Whether the Housing Board constituted under the 1956 Act was empowered to revise the layout approved by HUDA.
3. Whether Section 22 of the 1956 Act overrides the provisions of the 1975 Act and the provisions of the Constitution of India.
Relevant Provisions:
19. As it is expedient to take such measures, to make such schemes and to carry out such works as are necessary for the purpose of dealing with and satisfying the need of housing accommodation, the Government of Andhra Pradesh has enacted Act No. XLVI of 1956 known as the Andhra Pradesh Housing Board Act, 1956 ('1956 Act' for brevity). Section 4 of the said Act contemplates the constitution of the Housing Board.
20. Chapter III of the 1956 Act deals with Housing Schemes. Therein Section 21 contemplates about the duty of Board to undertake Housing Schemes, Section 22 about the matters to be provided for by housing schemes and Section 22-A about the declaration of intention to make Housing Scheme. Section 23 speaks about the Housing Scheme not to be made for area included in improvement scheme or be inconsistent with town planning scheme. Sections 21, 22 and 23, insofar as they are relevant for consideration, reads thus:
21. Duty of Board to undertake Housing Schemes :--Subject to the provisions of this Act and subject to the control of the Government, the Board may incur expenditure and undertake works for the framing and execution of such Housing Schemes as it may consider necessary from time to time, or as may be entrusted to it by the Government.
22. Matters to be provided for by Housing schemes :--Notwithstanding anything contained in any the law for the time being in force, a Housing Scheme may provide for all or any of the following matters, namely:
xxx
(b) the laying or relaying out of any land comprised in the scheme;
xxx
(j) the provision of parks, play-fields and open space for the benefit of any area comprised in the scheme or any adjoining area and the enlargement of existing parks, play-fields, open spaces and approaches;
23. No Housing Scheme to be made for area included in improvement scheme or be inconsistent with town planning scheme :--(1) Unless the Government by general or special order otherwise direct:
(a) be made for any area for which an improvement scheme, under any law for the time being in force regulating the duties and powers of a Municipal Corporation, Municipal or Town Committee, a District Municipality, a Zilla Parishad, a Panchayat Samithi or Village Panchayat has been sanctioned.
(b) Contain anything which is inconsistent with any matter included in a town planning scheme sanctioned by the Government under any law for the time being in force.
(2) Should a dispute arise, whether or not a Housing Scheme-
(a) includes any area for which an improvement scheme mentioned in Clause (a) of Sub-section (1) has been sanctioned;
(b) contains anything inconsistent with any matter included in a town planning scheme mentioned in Clause (b) of Sub-section (1); the dispute shall be referred to Government whose decision shall be final.
Section 26 of the Act enumerates sanction to Programme, budget and Establishment Schedule and Section 27 about publication of sanctioned programme. Section 32 specifies about transfer of land vested in local authority to the Board for purposes of Housing Scheme, Section 34 about the power of Board to turn or close public street vested in it and Section 36 with regard to power vesting in local authority of street laid out or altered and open space provided by the Board under Housing Scheme. Chapter IV of the 1956 Act deals with acquisition and disposal of land wherein Section 40 contemplates the power of the Board to purchase or lease by agreement. Section 40-A about modification of the Land Acquisition Act, 1894, Section 40-C about the power of Government to transfer Government land to the Board and Section 40-B about payment of compensation in respect of the land acquired.
21. The Government of Andhra Pradesh has enacted the Andhra Pradesh Housing Schemes (Acquisition of Land) Act, 1961 ('1961 Act' for brevity) to provide for acquisition of certain lands required for the purpose of executing Housing Schemes under the 1956 Act. Section 4 of the 1961 Act speaks about transfer of land to Housing Board. The same read as under:
3. Transfer of land to Housing Board:--
(1) Where any land has been acquired under Section 3, the Government may transfer the land to the Housing Board constituted under Section 3 of the Andhra Pradesh Housing Board Act, 1956 (Act XLVI of 1956), for the purpose of executing Housing Schemes framed under that Act; and thereupon the land shall vest in such Board.
(2) Where land is transferred under Sub-section (1) to the Housing Board aforesaid, the Housing Board shall be liable to pay the cost of acquisition of the land.
22. The layout plan can be altered only in terms of the provisions contained in Andhra Pradesh Urban Areas (Development) Act, 1975 (for short 'the 1975 Act'). The 1975 Act has been enacted to provide for the development of urban areas in the State of Andhra Pradesh according to plan and for matters ancillary thereto. Section 3 of the Act deals with constitution of Urban Development Authority, Section 6 to make a civic survey of, and Master Plan for the development of the urban areas declared under Section 13 of the Act. Section 7 contemplates the preparation of zonal development plans. Section 11 enumerates about sanctions to be made to certain plans already prepared. Section 12 provides the procedure to be followed as regards modification of the plans. Sections 11 and 12 of the 1975 Act read thus:
11. Certain plans already prepared and sanctioned deemed to have been prepared and sanctioned under this Act:--(1) Any general town planning scheme under the Andhra Pradesh (Andhra Area), Town Planning Act, 1920, any Development Plan under the Hyderabad Municipal Corporation Act, 1955 or any Master plan under the A.P. Municipalities Act, 1965, already prepared and published by the local authority concerned and sanctioned by the Government before the commencement of this Act with respect to any area now forming part or whole of a development area under this Act, shall be deemed to be a Master Plan so prepared and published by the Authority and sanctioned by the Government subject to such alterations and modifications as my be considered necessary, under this Act, (2) Any detailed town-planning scheme under the A.P. (Andhra Area) Town Planning Act, 1920, any improvement scheme under the Hyderabad Municipal Corporation Act, 1955, or any town development plan under the Andhra Pradesh Municipalities Act, 1965 already prepared and published by the local authority concerned and sanctioned by the Government before the commencement of this Act, with respect to any area now forming part of a development area under this Act, shall be deemed to be a zonal development plan, so prepared and published by the Authority and sanctioned by the Government, subject to such alterations and modifications as may be considered necessary under this Act.
(3) In respect of plans of the nature specified in Sub-section (1) or Sub-section (2) which are at different stages or preparation or publication or pending sanction of the Government at the commencement of this Act, such plans shall be deemed to have been prepared, or published or submitted to Government as the case may be, under this Act, subject to such alterations as may be considered necessary under this Act.
12. Modification 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 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 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 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 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 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.
(5) When the Authority makes any modifications to the plan under Sub-section (1), it shall report to the Government the full particulars of such modifications within thirty days of the date on which such modifications come into operation.
(6) If any question arises whether the modifications proposed to be made by the Authority are modifications which effect important alterations in the character of the plan or whether they relate to the extent of land-uses or the standards of population density, it shall be referred to the Government whose decision thereon shall be final.
(7) Any reference in any other Chapter, except this Chapter, to the Master Plan or the Zonal Development Plan shall be construed as a reference to the Master Plan or the Zonal Development Plan as modified under the provisions of this section.
23. Section 13 deals with declaration of development areas and development of land in those and other areas. Subsections (4), (5) "and (7) of Section 13 of the Act, which are relevant for the purpose, reads thus:
13. Declaration of development areas and development of land in those and other areas :
xxx (4) After the commencement of this Act, no development of land within the development area shall be undertaken or carried out by any person or body including any department of the Government, unless permission for such development has been obtained in writing from the Authority in accordance with the provisions of this Act (5) After the coming into operation of any of the plans in any area within the development area, no development shall be undertaken or carried out in that area unless such development is also in accordance with such plans.
xxx (7) After the commencement of this Act, no development of land shall be undertaken or carried out by any person or body including any department of the Government in such area adjoining to or in the vicinity of the development area, as may be notified by the Government unless approval of or sanction for such development has been obtained in writing from the local authority concerned, in accordance with the provisions of relevant law relating thereto, including the law relating to town planning for the time being in force and the rules and regulations made thereunder:
Provided that the local authority concerned may, in consultation with the Authority, frame or suitably amend its regulations their application to such area adjoining to or in the vicinity of the development area.
Sections 14 and 15 of the 1975 Act reads thus:
14. Application for permission :--(1) Every person or body including a Department of the Government desiring to obtain the permission referred to in Section 13 shall make an application in writing to the Authority in such form and containing such particulars in respect of the development to which the application relates as may be determined by regulations.
(2) Every application under Sub-section (1) shall be accompanied by such fee as may be prescribed:
Provided that no such fee shall be necessary in the case of an application made by a Department of the Government, or any local authority.
(3) On receipt of an application for permission under Sub-section (1), the Authority, after making such enquiry as it considers necessary, in relation to any matter specified in it considers necessary, in relation to any matter specified in Clause (d) of Sub-section (2) of Section 7, or in relation to any other matter, shall by order in writing either grant the permission, subject to such conditions, if any, as may be specified in the order or refuse to grant such permission.
(4) Where permission is refused, the grounds of such refusal shall be recorded in writing and communicated to the applicant in the manner determined by regulations.
(5) If, within ninety days after the receipt of any application made under this section for permission, or of any information or further information required under rules or regulations, the Authority has neither granted nor refused its permission such permission shall be deemed to have been granted; and the applicant may proceed to carry out the development but not so as to contravene any of the provisions of this Act or any rules or regulations made under this Act.
(6) The Authority shall keep a register of applications for permission under this section in such form as may be determined by regulations.
(7) The said register shall contain such particulars including information as to the manner in which applications for permission have been dealt with, as may be determined by regulations and shall be available for inspection by any member of the public during specified hours on payment of such fee, not exceeding five, as may be determined by regulations.
(8) Where permission is refused under this section the applicant or any person claiming through him shall not be entitled to get refund of the fee paid on the application for permission.
15. Use of the land and buildings in contravention of plans :--After the coming into operation of any of the plans 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 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.
The effect of other laws, which are relevant for consideration, reads thus:
57. Effect of other laws :--(1) Nothing in this Act shall affect the operation of the Andhra Pradesh Slum Improvement (Acquisition of Land) Act, 1956.
(2) Save as otherwise provided in Sub-section (6) of Section 42 or Sub-
section (7) of Section 43 or Sub-section (1) of this section, the provisions of this Act and the rules and regulations made thereunder shall have effect, notwithstanding anything inconsistent therewith contained in any other law.
(3) Notwithstanding anything in any other law-
(a) when permission for development in respect of any land has been obtained under this Act, such development shall not be deemed to be unlawfully undertaken or carried out by reasons only of the fact that permission, approval or sanction required under such other law for such development has not been obtained.
(b) when permission for such development has not been obtained under this Act, such development shall not be deemed to lawfully undertaken or carried out by reason only of the fact that permission, approval or sanction required under such other law for such development has been obtained.
24. The Government of Andhra Pradesh in exercise of the powers conferred under Section 58(1) of the 1975 Act issued G.O. Ms. No. 215, Housing Municipal Administration and Urban Development (MA), dated 1-4-1977 whereby and whereunder the Urban Development Authority (Hyderabad) Rules, 1977 ('1977 Rules' for brevity) have been framed. The said rules apply to the development areas as notified under Sub-section (1) of Section 13 of the 1975 Act. Sections 13 and 13-A of the 1977 Rules reads thus:
13. Modification to the Master Plan :--In the case Authority desires to make any modification in the Land Use Map or Master Plan under Sub-section (1) of Section 12 of the Act, a public notice shall be issued in a prominent place in atleast three local (Telugu, Urdu and English) newspapers by the Authority.
(2) The Authority shall invite, in Form No. III appended to these rules objections and suggestions to be given in Form No. IV appended to these rules from any person or local authority affected directly or indirectly with respect to the Master Plan land use map proposed to be modified.
(3) Soon after the objections and suggestions are received by the Authority, the Authority shall conduct local enquiries and other hearings, if necessary and given an opportunity to the person affected (whether directly or otherwise) to be held on a specified date or dates before the modifications are finally approved.
13-A. Modifications 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 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 give an opportunity to the persons affected to state their objections before the modifications are approved and published in the Andhra Pradesh Gazette.
25. The Government of Andhra Pradesh issued two Government Orders vide G.O. Ms. Nos. 917 and 916, Housing, Municipal Administration and Urban Development Department, dated 11-8-1981, in terms of the powers conferred under Section 59(1) of the 1975 Act, framing regulations known as the Hyderabad Multi-storeyed Buildings Regulations, 1981 ('1981 Regulations' for brevity) and the Bhagyanagar Urban Development Authority Zoning Regulations, 1981 ('zoning regulations, 1981' for brevity). The said regulations and zoning regulations are required to be read with the building bye-laws issued under Section 586 of the Hyderabad Municipal Corporation Act, 1955. These regulations shall apply initially to all development works within the limits of Municipal Corporation of Hyderabad and may be extended to other areas within the development area from time to time. From the date of coming into force of these regulations, all regulations and bye-laws or parts thereof which may be in conflict with these regulations will become invalid to the extent they are so inconsistent. Regulations 5.2.2 and 7.1 of the zoning regulations, 1981 deal with submission of layouts and the areas to be earmarked for various facilities including parks. Regulation 12 empowers the Government to grant any exemptions.
Findings:
26. This case depicts a sorry state of affairs prevailing in our society.
27. The fact remains that in the Master Plan, the area in question was shown as park. The layout plan can be changed or altered only in terms of the 1975 Act. The Housing Board states that it has no jurisdiction to change the layout plan. It further states that the plan which was marked as Ex.B1, equivalent to Ex.B47, which has been signed by the Junior Housing Engineer, District Housing Engineer and Regional Housing Engineer sent on 5-3-1999 and 31-3-1999 to the Chief City Planner, Municipal Corporation of Hyderabad (MCH) and to the Hyderabad Urban Development Authority (HUDA) are tampered ones. It has further said that the Board has no practice to put numbers as S1 and S2 in the plan.
28. It also appears from the facts that various litigations before both the Civil and Criminal Courts are pending between the parties in relation to the plan in question.
29. By an order dated 1-8-2000, this Court directed the Additional Chief Judge, City Civil Court, Hyderabad to conduct an enquiry on the point as to whether the site in dispute was earmarked for "park" in the layout and submit a report. An enquiry report dated 18-8-2001 has accordingly been submitted by the Additional Chief Judge. The credence or otherwise of the said report had been questioned on various grounds including the ground of misreading and misinterpreting the evidences produced before the Enquiry Officer.
30. So far as genuineness or otherwise of Ex.B47 is concerned, the learned Enquiry Officer commented that the plan having been produced from the custody of the Housing Board, the burden lies on the Housing Board to prove the genuineness or otherwise, but the Board failed to prove that the plan in Ex.B47 is tampered with. The Enquiry Officer, however, despite the same, observed that his opinion would not come in the way of the Housing Board authorities to probe into the matter and arrive at a 'just' conclusion as to whether there was any tampering or not by entrusting the matter to any investigating agency. It clearly goes to show that the Enquiry Officer himself did not intend to attach any finality to the said question.
31. The learned Enquiry Officer unfortunately proceeded on the basis that the site was not retained as a 'park' particularly having regard to the fact that the words S1 and S2 shops have been mentioned in the altered layout plan dated 10-4-1987. The Enquiry Officer, however, in para 34 of his report records:
Practically there is no dispute with regard to a fact that the site in dispute was earmarked for park in the original/ proposed lay out. Ex.B5 is the sketch pertaining to the proposed layout plan of the year 1984. This is the original plan. In this plan the disputed site is identified as ABCD and it is noted as "park".
32. It is, therefore, evident that the Enquiry Officer misdirected himself in submitting the report on the basis that the land was not retained as a park. Factually that may be correct, but the question which arises for consideration is not as to whether an open space was not retained as a park, but the question which ought to have been posed and answered was as to whether an open space which on his own finding was shown as a park could have been converted for any other purposes whatsoever without following the procedures of law. The Enquiry Officer evidently has failed to pose on to himself the right question for the purpose of determining the correct state of affairs so as to enable him to arrive at a right conclusion and took into consideration irrelevant facts which were not germane for deciding the issue and as such evidently misdirected himself in law. His findings, as noticed hereinbefore, are also self-contradictory.
33. Having regard to the fact that various litigations are pending, the sole question which would arise for consideration is as to whether in terms of the provisions of the 1956 Act, can the Board revise the layout approved by HUDA.
34. In terms of Section 22(j) of the 1956 Act, as noticed hereinbefore, the Housing Board, notwithstanding anything contained in any other law for the time being in force, may make the provision of parks, play-fields and open space for the benefit of any area comprised in the scheme or any adjoining area and the enlargement of existing parks, play-fields, open spaces and approaches. The aforementioned provision clearly goes to show that the Housing Board had no jurisdiction to carry out any other activity, than the one prescribed in the Master Plan layout earmarked as "park". Although there exists a non-abstante clause in both the Acts, the question, which may further arise for consideration, is as to whether such non-abstante clause will have an overriding effect over a later Act viz., the 1975 Act, which was passed for development of urban areas in the State of Andhra Pradesh.
35. It is not in dispute that even the Housing Board is required to take permission of HUDA and the Municipal Corporations before it takes up the construction of the buildings. HUDA, pursuant to an application filed by the Housing Board, accorded sanction for construction of houses to the employees of the Indian Airlines. In the aforementioned sanction plan also the area in question was earmarked as "park".
36. The submission of the learned Counsel for the respondents to the effect that all constructions including buildings were raised in terms of the revised layout plan dated 10-4-1987 and as such, there is no reason as to why the shopping complexes which have been allowed to build shall be otherwise dealt with cannot be accepted. As regards earmarking of the purported revised layout plan in relation to S1 and S2, different stands have been taken by the Housing Board.
37. The Court while considering such a matter is not concerned with the consequences particularly where it concerns ecology. A park provides for some lung space. It is well settled that the community requires certain lung space and may also use open space for sports and other recreational activities. Parks or wetlands are also necessary for the purpose of maintaining ecological balance. The doctrine of public trust applies in relation to park wherefor the open space is earmarked for the purpose of park, and it becomes the statutory duty of the local authorities and other statutory bodies to maintain the same. The authorities of the Board have no right to do away therewith unless the Master Plan is modified in terms of the provisions of Section 12 of the 1975 Act read with Rules 13 and 13-A of the 1977 Rules. The development Act, as noticed hereinbefore, envisages preparation of a Master Plan, which consists of various zones-the user of such zone is specified therein. Stages of development are also specified. A planned development is contemplated under the Master Plan and Zonal Development Plans. While doing so, larger public interest must be kept in view. A creature of a statute therefore cannot be permitted to violate the provisions of the Act whereunder it was created.
38. A combined reading of the provisions of Sections 12 and 57 of the Act read with Rules 13 and 13-A of the 1977 Rules leave no manner of doubt whatsoever that even if any action is taken in derogation of the provisions of the Master Plan and Zonal Development Plan, the same would not be a lawful act.
39. Both the 1956 Act and the 1975 Act contain a non-abstante clause, but which Act shall prevail over the other has to be considered having regard to the purport and object of the Act. In a case of this nature, the 1975 Act shall prevail. In Allahabad Bank v. Canara Bank, , it has been held:
Alternatively, the Companies Act, 1956 and the RDB Act can both be treated as special laws, and the principle that when there are two special laws, the latter will normally prevail over the former if there is a provision in the latter special Act giving it overriding effect, can also be applied. Such a provision is there in the RDB Act, namely, Section 34. A similar situation arose in Maharashtra Tubes Ltd. v. State Industrial and Investment Corporation of India, where there was inconsistency between two special laws, the Finance Corporation Act, 1951 and the Sick Industries Companies (Special Provisions) Act, 1985. The latter contained Section 32 which gave overriding effect to its provisions and was held to prevail over the former. It was pointed out by Ahmadi, J., that both special statutes contained non-obstante clauses but that the "1985 Act being a subsequent enactment, the non-obstante clause therein would ordinarily prevail over the non-obstante clause in Section 46-B of the 1951 Act unless it is found that the 1985 Act is a general statute and the 1951 statute is a special one". Therefore, in view of Section 34 of the RDB Act, the said Act overrides the Companies Act, to the extent there is anything inconsistent between the Acts. Other rulings of Supreme Court and High Courts cited by Counsel:
40. In that view of the matter, as it has been accepted by the learned Counsel appearing on behalf of the Housing Board, it cannot act in derogation of the Master Plan and layout plan prepared by HUDA.
41. In Sri K. Ramdas Shenoy v. The Chief Officers, Town Municipal Council, Udipi and others, , it has been held:
"Where the Municipality acts in excess of the powers conferred by the Act or abuses those powers then in those cases it is not exercising it's jurisdiction irregularly or wrongly but it is usurping the powers which it does not possess.... If sanction is given to build by contravening a bye-law, the jurisdiction of the Courts will be invoked on the ground that the approval by an authority of building plans which contravene the bye-laws made by that authority is illegal and inoperative.
42. In Ushodaya Publications (P) Ltd. v. M. Ramanamma, (DB) a Division Bench of this Court dealing the provisions of Sections 2 of the 1975 Act and Rule 13-A of the 1977 Rules, held:
.... It is a fact that according to the Master Plan itself, 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 newspapers, 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....
43. Yet again, in B. Mahender Reddy v. Govt. of A.P., 1988 (1) ALT 773, a Division Bench of this Court while dealing with the provisions of the 1956 Act and the regulations framed thereunder, held:
Clause 14 of the regulations provides that while fixing the price of the land the provision for roads, parks and open space should be taken into account. In the layout it is obligatory to earmark a considerable chunk of the area for parks and open spaces with a view to provide light, ventilation, greenery to tone up the health and hygiene. .... The inclusion of these provisions in the cost price is founded upon the obligation to make them available for public use and on the sanction of the layout the spaces allocated for these purposes cannot be diverted to other use and the alienation by sale is forbidden. ..... The Housing Board is divested of the right in the land earmarked for open spaces etc., on their inclusion in the layout.
44. Another Division Bench of this Court in S.R. Ramanujam v. Chief Secretary, , also held that even parks cannot be used for the purpose of cremation of leaders.
45. In a similar situation, in WP No. 16591 of 2001, this Court noticed the decisions of the Apex Court in M.C. Mehta v. Union of India, , M.C. Mehta v. Union of India, , and in M.C. Mehta v. Union of India, 2001 (4) SCC 477 and held:
In this view of the matter, we are of the opinion that the action taken by the respondent-Corporation must be held to be a nullity being ultra vires the provisions of the Act and the Layout Rules, 1970 as it has exceeded its jurisdiction. Sub-rule (4) of Rule 10 of the Layout Rules, 1970 clearly provides that the authority shall not use the lands transferred and set apart under Clause (b) of Section (2) of Section 184 of the A.P. Municipalities Act, 1985 for any purpose other than for which it was so transferred.....
46. Emphasising the need of providing a park by way of a long space, the Court referring to Bangalore Medical Trust v. B.S. Mudappa, , M.I. Builders Pvt. Ltd v. Radhey Shyam Sahu and Ors., , NGOs. Colony Development Committee v. District Collector, Krishna, Machilipatnam, 2000 (1) ALD 55, H.G.N. Samity v. Chief Secretary, 2000 (1) CHN 28, and other cases, held that no constructions could be permitted to be raised in Public Park. We have taken a similar view in an unreported judgment in WP No. 5810 of 2001 (China Waltair Colony House Owners Welfare Assn. v. Commissioner, Visakhapatnam Municipal Corporation and Ors.). This Court held that the Commissioner of a Municipal Corporation has no jurisdiction to transfer any property in violation of Sub-section (2) of Section 148 of the Act. Yet again, in WP No. 7535 of 2001, the Court referring to the aforementioned decisions has reiterated the necessity of having a park.
47. In the instant case, some disturbing features have come to our notice apart from the fact that the original layout plan (Master Plan) of the Municipal Corporation had been tampered with.
48. The records show existence of four different associations, of which one is registered, in whose favour orders have been passed from time to time, although the purported acquisition was made only for the benefit of the members of one association.
49. Sale-deeds have been executed by persons, who are not authorised therefor, and in contravention of the provisions of the 1956 Act, which authorises only the Vice-Chairman to execute a Deed of Sale. We fail to understand even if the said Act provides a delegation of power as to how the same can be delegated in favour of a private individual, who is not an officer of the Housing Board. Glaring mistakes occurred in the said sale-deeds and realising the same, purported deeds of Rectification had been executed. Although in terms of the provisions of the Municipal Corporation Act and the Building Bye-laws, only a holder of a title can file an application for having a building permit, in this case vendor even after execution of the Deeds of Sale filed such an application. The authorities of the MCH for reasons best known to them proceeded to grant permission despite the same.
50. The learned Counsel for the respondents have submitted that such a disputed question of fact should not be allowed to be determined in a writ proceedings particularly when the credibility of the petitioner is doubtful. Reliance in this connection has been placed in Sachidanand Pandey and Anr. v. State of West Bengal and Ors., AIR 1987 SC 1109.
In Sachidanand Pandey itself the Apex Court held:
Bearing in mind the proper approach that we have to make when questions of ecology and environment are raised, an approach which we have mentioned at the outset, we are satisfied that the facts and circumstances brought out by the appellants do not justify an inference that the construction of the proposed hotel in the Begumbari land would interfere in any manner with the animals in the zoo and the birds arriving at the zoo or otherwise disturb the ecology. The proposed hotel is a garden hotel and there is perhaps every chance of the ecology and environment improving as a result of planting numerous trees all around the proposed hotel and the removal of the burial ground and dumping ground for rubbish.
51. Irrespective of the question of title and the other matters including construction of various buildings, we are of the opinion that this Court is not denuded of its power to consider the question as regards the jurisdiction of the respective jurisdiction of the Housing Board vis-a-vis HUDA.
52. In two recent judgments, in Writ Petition Nos.1820 and 10800 of 1999, (delivered by V.V.S. Rao, J,, in ecological matters) this Court has categorically held that even where the locus of the petitioner to bring in a public interest litigation is doubtful, the Court in a given situation, having regard to greater public interest may take up the matter suo motu and determine the same on the basis of the materials on record.
53. We therefore direct all concerned authorities to see that appropriate action be taken for demolition of the constructions, which have been raised in the layout earmarked for park.
54. With the aforementioned observations, the writ petition is disposed of. No order as to costs.
55. After pronouncement of our judgment, Mr. D.V. Sitarama Murthy and Mr. N. Subba Reddy, the learned Counsel appearing for the parties submit that apart from some permanent structures a public bank is also operating in the disputed site and therefore seeks to stay the operation of the judgment for six weeks so as to make alternate arrangements.
56. Keeping in view the submissions made by either Counsel, we stay the operation of the judgment for a period of four weeks.