Telangana High Court
Bodugula Suman Reddy And 4 Others vs The State Of Telangana And 2 Others on 17 January, 2022
Author: K. Lakshman
Bench: K. Lakshman
HON'BLE SRI JUSTICE K. LAKSHMAN
WRIT PETITION Nos.8767 AND 3051 OF 2021
COMMON ORDER:
Writ Petition No. 8767 of 2021 is filed seeking a declaration that the impugned notice dated 01.04.2021 issued vide proceedings Proc. No. 276/TPS/POC/2021 by Respondent No. 2 directing the Petitioner to remove the walls and the gates of the Petitioner township within 3 days by giving access to the internal roads of the closed township as illegal, arbitrary, violative of Article 21 and Article 300A of the Constitution of India and violative of principles of natural justice. A consequential direction is sought to restore the damage, if any, caused to the Petitioner.
2. Writ Petition No. 3051 of 2021 is filed seeking a direction to the Respondent Municipality in not taking any action pursuant to the representation dated 23.01.2021 for removal of obstructions on the public roads passing through Samskruti Township in Sy. Nos. 2 & 10 of Pocharam Village and Municipality, Ghatkesar Mandal, Malkajgiri- Medchal District, which is mentioned in the Master Plan of HMDA as illegal, arbitrary and unreasonable. A consequential direction is sought to remove the obstructions on the public roads passing through Samskruti Township.
3. Heard Dr. Venkat Reddy Donthi Reddy, learned counsel for the petitioner in W.P. No.8767 of 2021; Mr. A. Giridhar Rao, learned senior counsel representing Mr. Palle Srinivasa Reddy, learned counsel for the petitioners in W.P. No.3051 of 2021; learned Government Pleader for 2 KL,J W.P. Nos.8767 & 3051 of 2021 Municipal Administration and Urban Development; Mr. N. Praveen Kumar, learned Standing Counsel for Municipalities appearing on behalf of respondent No.2; Mr. V. Narasimha Goud, learned Standing Counsel for HMDA appearing on behalf of respondent No.3; and Mr. G. Vishweshwar Reddy, learned Standing Counsel for Telangana Housing Board appearing on behalf of respondent No.4 and Mr. Sreenivasa Rao Velivela, learned counsel for respondent Nos.8 and 11 in W.P. No.8767 of 2021.
4. Facts of the Case
i) The Petitioner (Respondent No. 3 in W.P. No. 3051 of 2021) is an association formed by residents of Sanskruti Township. The said township was constructed on the land belonging to Andhra Pradesh Housing Board (APHB), who is Respondent No. 4 herein, by bringing in a special scheme with the permission of the Government vide G.O. Ms. No. 229 dated 15.09.2001. The construction of the said township was completed in March 2005 and the flats were registered and their possession was handed over to the owners.
ii) According to the Petitioner, APHB agreed for the maintenance of the roads and other public utility services of the said township for a period of 2 years and thereafter transferred the duties of maintenance to an Ad Hoc body formed by the members from various flat owners' associations. The said Ad Hoc body transferred the duties of maintenance to the formally elected registered association i.e., 'Sanskruti Township Flat Owners Welfare Association'. However, Respondent No. 2 claims 3 KL,J W.P. Nos.8767 & 3051 of 2021 that the duties of maintaining the internal and peripheral roads of the said township were transferred to it when it was a Gram Panchayat and since then it is maintaining the roads of the said township.
iii) According to the Petitioner, the said Township is a gated/integrated community with boundary walls surrounding the flats. The Petitioner stated that the boundary wall was demolished and the roads of the said township were being used by the villagers for their ingress and egress. The Petitioner tried to stop outsiders from using the alleged 'private roads' of the said township.
iv) While the matter stood thus, one C. Badrinarayana Goud (Respondent No. 8 herein) submitted a representation dated 22.01.2018 to Respondent No. 2, the then Gram Panchayat, seeking No Objection Certificate (NOC) to use the peripheral road passing through the said township connecting it with the master plan road. Pursuant to the representation dated 22.01.2018, the then Gram Panchayat issued NOC vide letter bearing No. GPP/239/2017-18 dated 16.02.2018.
v) The NOC granted by letter dated 16.02.2018 was challenged by the Petitioner herein in W.P. No. 9534 of 2018 and the same was allowed vide order dated 02.02.2021 and the letter dated 16.02.2018 was set aside on the grounds of violation of principles of natural justice. The matter was remanded back and the authorities were directed to issue notices, afford an opportunity of hearing to all the effected parties and decide as expeditiously as possible, preferably within a period of eight (08) weeks 4 KL,J W.P. Nos.8767 & 3051 of 2021 as to whether the land passing through the said township can be used as a pathway.
vi) During the pendency of W.P. No. 9534 of 2018, Respondent Nos. 5, 6, 7, 9 & 10 herein submitted a representation dated 23.01.2021 to Respondent No. 2 herein to take action and remove the obstructions to the public roads passing through Sanskruti Township. Feeling aggrieved that no action was taken on the representation dated 23.01.2021, W.P. No. 3051 of 2021 was filed by Respondent Nos. 5, 6, 7, 9 & 10. This Court vide order dated 10.02.2021 directed the competent authority to consider the representation dated 23.01.2021.
vii) Pursuant to the order passed in W.P. No. 9534 of 2018 and order dated 10.02.2021 in W.P. No. 3051 of 2021, Respondent No. 2 herein issued a notice to the Petitioner herein vide Lr. No. 01/TPS/PocharamMplty/2021 dated 25.02.2021 and sought for an explanation.
viii) The Petitioner herein submitted its explanation to the notice dated 25.02.2021 contending that Sanskruti Township is a gated community and outsiders cannot be allowed to use roads passing through the township. On the contrary, it was contended by Respondent Nos. 5 to 11 that roads passing through Sanskruti Township are public roads and the said township is not a gated community. Respondent No. 2 passed a speaking order dated 01.04.2021 directing the Petitioner herein to remove walls & gates obstructing road access to the public within three days. Respondent No. 2 stated that the roads passing through the said township 5 KL,J W.P. Nos.8767 & 3051 of 2021 were transferred by the erstwhile APHB in its favor. The internal roads passing through the township vest with the municipality.
ix) Hence, W.P. No. 8767 of 2021 is filed challenging the order dated 01.04.2021. An interim order was passed on 06.04.2021 directing the parties to maintain status quo and the Petitioner was directed to keep the gates of the township open and not to obstruct public access to the roads from 06.00 AM to 10 PM.
5. Contentions of the Petitioner
i) The erstwhile APHB invited people to purchase flats based on the concept of integrated township/gated community. The scheme proposed under G.O. Ms. No. 229 dated 15.09.2001 stated that the township was to be surrounded by a 'compound wall and barbed wire'. The estimates for the construction of the township project included the costs for construction of a compound wall and fencing.
ii) The township was planned in a manner to have a single point of ingress and egress. The roads were designed only for the use of the residents of the township and was not designed to allow the general public.
iii) The compound wall is in existence since the inception of the township i.e., from 2005 and the people residing in and around the township are aware of the same. If the compound wall is removed, the uniqueness of the township and the purpose for which it was made will be lost.
6
KL,J W.P. Nos.8767 & 3051 of 2021
iv) Respondent No. 4 which was earlier known as APHB, in its counter has categorically stated that 'Sanskruti Township' is a gated community.
v) A revised layout vide permit No. 3964/MP2/Plg/HMDA/2007 dated 26.10.2010 was issued by HMDA which stated that the layout was issued for a "Group Development" and "Satellite Township". Though the revised layout does not mention about the compound wall, it shows thick lines indicating the existence of a compound wall.
vi) Once a township is designated as a gated community, it remains a gated community unless its status is changed in accordance with law by putting the residents on notice. Merely because a letter by one of the residents was not considered to designate the township as a gated community, Respondent No. 3 cannot deprive 2080 flat owners and 10,000 residents of their rights.
vii) There is no express permission, any resolution or any proceeding to suggest that the status of the township was changed from a gated community to any other form. Therefore, the revised plan changing the status of the township from a gated community is illegal and violative of principles of natural justice.
viii) The safety and well-being of the residents of the will be threatened if the internal roads of the township are opened for general public. Incidents of several thefts and accidents have occurred due to the ingress and egress of outsiders.
7
KL,J W.P. Nos.8767 & 3051 of 2021
ix) After the transfer of possession and ownership of flats to the purchasers, the maintenance of the township for the first 2 years was done by APHB. Later, the maintenance of the colony including security, landscapes, water supply, housekeeping and street lights, etc., is being managed and maintained by the Petitioner by collecting maintenance charges from the Flat Owners.
x) The handing over of the township to the then Gram Panchayat was only for future maintenance as it is collecting taxes from the residents of the colony, but the roads are meant only for the residents.
xi) The villagers of Pocharam and Annojiguda including the unofficial Respondents herein have access to alternative roads. Respondent No. 2 has ignored the fact that there is a 100 feet road in the master plan, which can be used.
xii) The Master Plan notified in the year 2010 is not applicable and only the Master Plan notified in 2002 is applicable.
xiii) The impugned notice dated 01.04.2021 was served in the evening on a Thursday being well aware that the 4 days are Holidays on account of Good Friday, Saturday, Sunday, and Babu Jagjivan Ram Birthday. The impugned notice was issued at the behest of political leaders and is without application of mind.
6. Contentions of Respondent No. 2 (Pocharam Municipality)
i) Respondent No. 2 was earlier Gram Panchayat which was designated as Pocharam Municipality.
8
KL,J W.P. Nos.8767 & 3051 of 2021
ii) The erstwhile APHB sought permission for construction of 'group housing' and allotted flats to all the beneficiaries. Thereafter, all the internal and peripheral roads along with parks and open spaces were transferred by APHB to Respondent No. 2. Therefore, the same vest with Respondent No. 2.
iii) Although the maintenance of Sanskruti Township was handed over to the Ad Hoc body of the flat owners' association on 07.01.2009, the roads and open spaces were not handed over to the Petitioner or its predecessor Ad Hoc body.
iv) The Petitioner had filed an application before Respondent No. 3 (HMDA) seeking to convert Sanskruti Township into a gated community. The said application was rejected vide Lr. No. 3964/MP2/Plg/HMDA/2002 dated 25.04.2011. Therefore, the Petitioner and the flat owners cannot contend that Sanskruti Township is a gated community.
v) The Master Plan of 2010 is applicable to the Petitioner's township. Once a Master Plan is notified by the Government it is applicable and enforceable. Municipalities and Government have a right to connect the roads as per master plans.
vi) Although Respondent No. 4 states that the township was a gated community, it was not accepted by Respondent No. 3.
vii) Respondent No. 3 also examined a letter dated 07.12.2018 submitted by the President of Sanskruti Township to re-designate it as a gated community. Replying to the said letter it was informed that their 9 KL,J W.P. Nos.8767 & 3051 of 2021 request to convert the township into gated community was not considered.
viii) Once roads, parks and open spaces are vested with the local body, they can be accessed by general public.
ix) General Public has a right to access all the public roads and public amenities. Reliance was placed on Section 185 (1) of the Telangana Municipalities Act, 2019.
x) The impugned order dated 01.04.2021 was rightly passed as per Section 185 (1) of the Telangana Municipalities Act, 2019 and there is no illegality.
7. Contentions of Respondent No. 3 (HMDA)
i) The erstwhile APHB was granted layout permission under the category of normal layout. The application to categorize the township as gated community was rejected vide Lr. No. 3964/MP2/Plg/HMDA/2002 dated 25.04.2011.
ii) Once a layout is formed, the roads in it will automatically vest with the concerned local body. The Petitioner township cannot obstruct the access to general public to use the roads which are vested with Respondent No. 2.
iii) The boundary wall constructed by the Petitioner surrounding the township is illegal and unauthorized. Respondent No. 2 has the power to remove the same.
10
KL,J W.P. Nos.8767 & 3051 of 2021
iv) There is a 60 feet Master Plan Road which is connecting from existing 60 feet Sanskruti Township Road and the proposed 100 feet Master Pan Road is passing through the center of the land of Respondent No. 8 in Sy. No. 22 of Pocharam Village. The said proposed Master Plan Road is also shown in the approved revised Sanskruti Township layout plan issued to the erstwhile APHB on whose application layout was granted. Hence, the Petitioner is stopped from raising contentions.
8. Contentions of Respondent No. 4 (T.S. Housing Board) Respondent No. 4 supported the contentions of the Petitioner and stated that the subject township is a gated community. It sought to set aside the impugned order dated 01.04.2021.
9. Contentions of Respondent Nos. 5, 6, 7, 9 & 10 and 8 & 11
i) Respondents Nos. 5, 6, 7, 9 & 10 are the Petitioners in W.P. No. 3051 of 2021 and are the residents of Pocharam and Annojiguda villages.
ii) The road passing through the subject township is the only access to the main road i.e., Hyderabad to Warangal Highway. Therefore, they are using the same.
iii) Prior to the acquisition of the land for construction of the township, it was an agricultural land which was used by all the villagers to reach the main road. Therefore, though not mentioned in the village map, there was an existing road which was used.
iv) At the time acquisition by APHB, the villagers were assured that the access to roads will not be obstructed as that was the only short 11 KL,J W.P. Nos.8767 & 3051 of 2021 route to reach the main road.The roads were demarcated such that they will be accessible by the villagers.
v) All the roads are vested in Respondent No. 2 which is responsible for its maintenance. Reliance was placed on Section 53 and Section 185 (1) of the Telangana Municipalities Act, 2019.
vi) Public roads are public properties and are constructed for welfare and betterment of public. Relying on Koganti Venkata Suryanarayana v. State of Andhra Pradesh1 it was argued that compound walls constructed encroaching public roads are to be removed.
vii) The subject township is not a gated community and the request to re-designate it as a gated community was rejected by Respondent No. 3 vide order dated 25.04.2011.The said order has become final and is not challenged by anyone. After lapse of 10 years, the Petitioner cannot claim to be a gated community.
viii) Once the township is not a gated community, it does not have any independent vested right over public places like roads and parks.
ix) The impugned order dated 01.04.2021 was passed in furtherance of order passed in W.P. No. 9534 of 2018 which was filed by the Sanskruti Flat Owners Welfare Association. However, the impugned order is not challenged by the said flat owners' association but by Sanskruti Township itself by its Secretary. This means that the Petitioner in W.P. No. 9534 of 2018 has accepted the impugned order.
10. Findings of the Court 1 2018 (3) ALD 72 (DB).
12
KL,J W.P. Nos.8767 & 3051 of 2021
i) It is clear from the facts of the case that the Petitioner claims that the said 'Sanskruti Township' is a gated community. The roads within the compound walls of the township are exclusively for the use of the residents of the township and outsiders cannot use them. Further, Respondent No.2 cannot demolish the compound wall of a gated community and allows access to outsiders.
ii) On the other hand, all the official and unofficial Respondents, except Respondent No. 4, dispute the claim that the township is a gated community. They claim that the roads within the township are public roads which are vested in Respondent No. 2 and are accessible by general public. Therefore, the question before this court is whether 'Sanskruti Township' is a gated community or not?
iii) The whole case of the Petitioner rests on the fact that the township was planned and built as a gated community. The Petitioner relied on the brochure inviting people to purchase flats in the township. The counter affidavit of Respondent No. 4 was also relied upon to claim that the township was a gated community.
iv) However, Respondent No. 3 vide Lr. No. 3964/MP2/Plg/ HMDA/2002 dated 25.04.2011 intimated Respondent No. 4 that the request to designate the township was rejected. The finding of proceedings dated 25.04.2011 are extracted below: 13
KL,J W.P. Nos.8767 & 3051 of 2021 "HYDERABAD METROPOLITAN DEVELOPMENT AUTHORITY GHMC Buildings 1" floor West Marredpally, Secunderabad. Lr.No.3964/MP2/Plg/HMDA/2002 Dated: 25-04-2011 To The Vice-Chairman & Housing Commissioner, A.P. Housing Board, "Gruhakalpa", MJ. Road, Hyderabad-500 001.
Sir, Sub:- HMDA Plg. DC Unit Technical approval of Multistoried Building Permission for Residential Apartment (Stilt + 10 Upper Floors) with Revised Layout in Sy.Nos. 2 and 10 of Pocharam Village, Ghatkesar Mandal, R.R. District - Reg.
Ref-1. Letter dt. 17-09-2008 of APHB, Hyderabad,
2. Yours dt. 18-7-2002 of APHB Hyderabad.
3. G.O.Ms.No. 439, MA dt. 13-06-2007.
4. Minutes of the MSBC Meeting held on 14-05-2009.
5. Application dt. 19-12-2009 of A.P.H.B., Hyderabad.
6. D.O.Lr.No. 117/Poch/EE (CD)/2002, dt. 31-5-2010 of APHB Hyderabad.
7. This office letter of even No. dt. 26-11-2010.
8. Letter No. 117/Poch/EE(CD)/2009, dt. 28-3-2011 of the Executive Engineer, Central Division.
With reference to the subject and correspondence cited, it is to infirm that HMDA has technically approved MSB and revised group housing layout with apartments (Stilt + 10 Upper Floors) were forwarded to Executive Authority, Ghatkesar Mandal, R.R. District in the reference 7th cited.
Through the reference 8th cited, the APHB has requested to HMDA to re-designate the layout as gated community/gated development township.
The request has been examined and your request for re- designation layout as Gated Community/Gated Development is not considered.
This is for information.
Yours faithfully, Sd/ for Metropolitan Commissioner."
v) The above proceedings clearly state that the request for re- designation of the layout as a gated community was not considered. The 14 KL,J W.P. Nos.8767 & 3051 of 2021 copy of the said proceedings dated 25.04.2011 was marked to Executive Engineer, APHB and Pocharam Gram Panchayat.
vi) An order passed or proceedings issued by a statutory authority remains in force unless it is set aside by a competent Court or held unlawful/illegal by a competent court or ceases to exist by operation of law. In the present case, the Petitioner has not denied the proceedings dated 25.04.2011 and has till date not challenged the same. The erstwhile APHB which is Respondent No. 4 herein, who was responsible for initiation of the project to construct the said Sanskruti Township, also did not challenge the proceedings dated 25.04.2011. Without challenging the proceedings dated 25.04.2011, the Petitioner cannot contend that Sanskruti Township is a gated community.
vii) It is contended by the petitioner that there was no order or proceeding to show that the status of the township was changed as a gated community. It was further contended that once a township is designated as a gated community it remains a gated community, unless changed by due procedure. This court cannot accept the said contentions as neither the Petitioner nor the APHB have challenged the proceedings dated 25.04.2011. The Petitioners and Respondent No. 4 have remained silent for more than 10 years.
viii) During the course of arguments, several disputed questions regarding the existence of a public road within the alleged gated community were raised. Though this Court can go into the factual aspects in exercise of its powers under Article - 226 of the Constitution of India 15 KL,J W.P. Nos.8767 & 3051 of 2021 as held by the Apex Court in ABL International Ltd. v. Export Credit Guarantee Corporation2, certainly, not the complicated disputed questions of facts. This Court cannot decide such disputed questions which involve existence or identification of properties.
11. Conclusion W.P. No. 3051 of 2021 is disposed of as infructuous as the representation dated 23.01.2021 was considered and the order dated 01.04.2021 was issued, whereas, W.P. No. 8767 of 2021 is dismissed. However, in the circumstances of the case, there shall be no order as to costs.
As a sequel, miscellaneous petitions, if any, pending in the writ petitions shall stand closed.
__________________ K. LAKSHMAN, J 17th January, 2022 Mgr 2 . (2004) 3 SCC 553