Andhra HC (Pre-Telangana)
Gail (India) Limited, Jetty Avenue, ... vs The Municipal Corporation Of ...
Author: A.Ramalingeswara Rao
Bench: A.Ramalingeswara Rao
THE HONBLE SRI JUSTICE A.RAMALINGESWARA RAO
WRIT PETITION Nos.13135 of 2006
25072014
GAIL (India) Limited, Jetty Avenue, Danavaipet, Rajahmundry, East Godavari
District, rep. by its OSD/DGM and anotherPetitioners
The Municipal Corporation of Rajahmundry, Rajahmundry, East Godavari District,
rep. by its Commissioner and others Respondents
Counsel for the Petitioners : Sri K.Venkata Rao
Counsel for the Respondents: Smt. K.SWARNA SESHU
(S.C. for M.C., Rajahmundry)
<Gist :
>Head Note :
?Cases referred
HON'BLE SRI JUSTICE A.RAMALINGESWARA RAO
WRIT PETITION Nos.13135 of 2006 & 20787 of 2009
COMMON ORDER:
These two Writ Petitions are being disposed of by this common order in view of the common question of law involved in both the cases.
2. Heard the learned counsel for petitioners and the learned Standing Counsel for respondents in both the cases.
W.P.No.13135 of 2006:
3. The petitioner is a public sector company engaged in the activity of marketing and distributing natural gas produced by various public sector and private sector companies. It purchased an extent of Acs.5-00 cents in R.S.No.226/1 & 5, situated at A.V.Apparao Road, Rajahmundry from the respondent by paying sale consideration @ Rs.1,200/- per square yard under a registered sale deed dated 22.02.2002 for the purpose of constructing administrative office complex and staff quarters. Previously the said land was used by the respondent as a garbage dumping yard. As the said land required huge investment for making it fit to construct buildings, the petitioner wanted to utilise only an extent of Ac.1-50 cents for constructing its office complex and wanted to dispose of the remaining land admeasuring Acs.3-50 cents and accordingly conveyed its decision to the respondent to know whether it is interested to take back the balance extent of land at the prevailing market rate. Though the respondent, initially, was not inclined to take, however, communicated its decision vide letter dated 04.03.2005 stating that it is willing to take the land @ Rs.800/- per square yard on the rear side and @ Rs.1,800/- per square yards on the road side portion. It is pertinent to notice that the land was earlier sold @ Rs.1,200/- per square yard to the petitioner in the year 2002. In view of the unwelcome offer, the same was rejected by the petitioner on 23.05.2005.
4. While so, the petitioner submitted an application to the respondent on 20.08.2005 seeking permission for construction of administrative office complex in an extent of Acs.1-50 cents duly enclosing the required documents. Without considering the said application, the respondent issued an endorsement on 15.09.2005 informing the petitioner that it has to pay an amount of Rs.52,46,739/- under the following heads for getting the permission for construction of administrative office complex.
1. Security Deposit Rs. 1,46,200/-
2. Building License Fees Rs. 44,100/-
3. ABL Rs. 21,945/-
4. Development Charges Rs. 29,260/-
5. Conversion Charges (Residential to Commercial) Rs. 2,90,081/-
6. Material Stocking Charges Rs. 8,778/-
7. Publication Charges Rs. 1,000/-
8. R.W.H.S. Rs. 6,000/-
9. Tree Guards Rs. 1,200/-
10. 10% open space cost Rs. 36,30,000/-
11. Betterment Charges (20,336X50%) Rs. 10,16,800/-
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Rs. 52,46,739/-
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It was also stated that the petitioner has to submit an undertaking for road widening portion to an extent of 844.728 square yards on an Rs.100/- non-judicial stamp paper. It appeared that the respondent was demanding payment of betterment charges as per C.R.No.663 dated 30.12.1995 read with G.O.Ms.No.65, MA, dated 05.02.1987 and 10% open space cost as per C.R.No.347 dated 01.01.1999. Since the petitioner made all arrangements for completion of the construction of administrative office complex by inviting tenders, etc., it was forced to pay the said amount by letter dated 17.01.2006 without prejudice to its right to contest the demand. Challenging the demand of the said amount, the present Writ Petition was filed mainly questioning the demand of Rs.36,30,000/- towards 10% open space cost and Rs.10,16,800/- towards betterment charges.
5. The learned counsel for petitioner submits that the entire Acs.5-00 cents of land was purchased by the petitioner from the respondent for the purpose of construction of administrative office complex and staff quarters and permission for the same was accorded on 18.01.2006 for construction of ground and second floor. Since permission was granted to the petitioner without mentioning any particular extent of land, the demand for 10% open space cost of Rs.36,30,000/- and betterment charges of Rs.10,16,800/- is illegal. The entire land belongs to the petitioner and the internal roads and facilities are created by the petitioner only subject to the conditions granted in the building permission and hence, 10% open space cost which is levied on the persons who do not maintain the said open space, cannot be imposed on the Petitioner. Similarly, betterment charges cannot be demanded from it as it developed the land at its own cost.
6. On the other hand, the learned Standing Counsel for the respondent in the above Writ Petition justified the action of the respondent in calculating betterment charges on the ground that the proposed site is an unapproved layout and an unauthorised sub-division. She states that the petitioner should leave 10% of the land as open space for public purpose and 30% of the land for roads, etc., for approval of layout in order to get permission. The charges are calculated as per the Council Resolution in C.R.No.347 dated 01.01.1997. When the learned Standing Counsel for respondent was asked to show the basis for such levy of 10% towards open space cost, she could not show any Legislative provision for such levy, except relying on Council Resolution No.347 dated 03.01.1997.
W.P.No.20787 of 2009:
7. Government have accorded permission in G.O.Ms.No.1076, Revenue (Assn.III) Department, dated 18.12.2004, to the Collector, Hyderabad District and Ranga Reddy District to put the scattered pieces of the Government lands upto 3000 square meters to public auction. The petitioner became a successful bidder in respect of plot No.11 in T.S.No.32/3, admeasuring 870 square yards, situated at Block No.K, Ward No.12, beside Sri Venkateswara Cooperative Housing Society, Road No.12, Banjara Hills, Hyderabad pursuant to an auction held by District Collector, Hyderabad on 29-7-2005. A sale deed was executed on 14.05.2009. The physical possession of the plot was handed over to the petitioner. The petitioner applied for permission to construct a house after paying the property taxes of Rs.93,960/- in respect of a shed erected therein and the plot was allotted house number as 8-2-293/82/L/336/C. The fourth respondent, vide impugned letter No.61/Open/8/2009 dated 01.09.2009, demanded payment of a sum of Rs.42,63,000/- towards shortfall in open space contribution charges. Challenging the same, the present Writ Petition was filed.
8. The fourth respondent filed a counter-affidavit stating that the petitioner constructed some structures without obtaining permission from the respondent Corporation for the sake of assessing the same to property tax and got it assessed with premises number. The petitioner now applied for building permission vide file No.61/Open/8/2009 for construction of stilt for parking and 3 upper floors in the above plot and it is not covered under the sanctioned layout of the Venkateswara Housing Society, though it is abutting to the Society. The Standing Committee vide resolution No.20, dated 23.06.2001, recommended to the General Body of the Municipal Corporation of Hyderabad to amend the earlier resolution enabling collection of 5% open space contribution charges as per the registration value in unauthorized layouts, unauthorized sub-divisions and unauthorized colonies developed in private lands without layout approval. Accordingly, the General Body vide resolution No.11 has accepted the recommendations of the Standing Committee permitting the respondent Corporation to collect 5% open space contribution charges in unauthorized layouts. Again the Standing Committee vide resolution No.416 dated 30.06.2008 had passed another resolution recommending to the General Body to amend charges and accordingly the General Body passed resolution No.94 dated 30.06.2008 resolving to rationalize all fees structures to be collected in various activities. As per the said resolution, open space contribution charges at 14% on the prevailing registration value per square yard, on plot area, in addition to other required charges have to be paid by the plot owners. As such, after considering the application of the petitioner for construction of building in the plot area of 727.32 square meters, the impugned letter dated 01.09.2009 was addressed to the petitioner requesting him to pay the demanded amount so as to further process his application. The amounts demanded by the respondent Corporation is as per law and supported by various resolution of the Standing Committee and General Body.
9. Another counter-affidavit is filed on 10.07.2014 stating that though the second respondent sold the property for which no layout is required and the plot is situated in the area which is not covered under the sanctioned layout. The respondent Corporation is entitled to collect the charges as per the resolutions of the Standing Committee and the General Body.
10. The learned Counsel for the petitioner submitted that the petitioner purchased the plot in question in a public auction from the Government when it put scattered pieces of land in Hyderabad to public auction and if at all any amount is to be paid, it is the vendor who has to pay the shortfall in open space charges. The scattered pieces can never form part of any layout and many areas in city are not covered by layouts. The shortfall charges for open spaces have to be collected from the plots in unauthorised layouts only and hence the demand made by the respondent is illegal.
11. The learned Standing Counsel for Greater Hyderabad Municipal Corporation relied on the resolutions passed by the Standing Committee and General Body in support of the action of the Corporation demanding the amount towards shortfall charges.
12. Though the two Corporations rely on respective resolutions passed by the respective Corporations, the genesis for collection is same which is discussed below.
13. A perusal of the Council Resolution No.347 dated 03.01.1997 of Rajahmundry Municipal Corporation indicates that the owners of the lands, who did not get layout permission from the Director of Town and Country Planning, Hyderabad, have to leave 10% of the land for public purpose to the Municipal Corporation. It was noticed that several plot owners have been preparing unauthorised layouts without leaving 10% of the land resulting in not providing any facility for park, school, community hall, etc. In those cases, the Director of Town and Country Planning, Hyderabad advised the Corporation to collect 10% of the value of the document as betterment charges and the Municipal Corporation has been collecting as such. But the said amount was not sufficient for acquiring land of an extent of 10% required for public purpose. In order to recoup the said loss, instead of purchasing the vacant land, it was decided to collect 10% of the value fixed by the Sub- Registrar.
14. The Government issued G.O.Ms.No.65, M.A. & U.D. (M1) Department, dated 05.02.1987, issuing certain guidelines for the Municipal Corporation/Urban Development Authority for follow up action and to arrest the growth of unauthorised layouts and sub-divisions of land made without approval. In the first case, the petitioner purchased the land of an extent of Acs.5-00 cents from the respondent itself for the exclusive purpose of constructing administrative office complex and staff quarters. The said land is not open to the public and in fact, after construction of the administrative office complex, a proposal was put forward before the respondent for construction of a township. So no layout is involved in the instant case. If at all any areas had to be left by the petitioner, the respondent can insist for leaving that percentage of area, while approving the plan for township. The 10% of the open space cost was sought to be recovered on the assumption that 10% of the open space was not left in the layout. That situation has not arisen at all. In W.P.No.20787 of 2009, the issue of layout does not arise at all as the petitioner purchased the plot of land in an open auction held by the Government and the Corporation cannot generalise the issue and demand amount from the petitioner.
15. The learned Standing Counsel for respondents relied on G.O.Ms.No.62, Municipal Administration, dated 28.01.1970 and G.O.Ms.No.982, M.A., dated 05.10.1979. Those Government Orders relate to A.P. Municipalities (Layout) Rules, 1970. The Layout Rules were issued under G.O.Ms.No.62 dated 28.01.1970 and it was amended in G.O.Ms.No.982 dated 05.10.1979. The respondent is a Municipal Corporation and those Rules are not applicable to it.
16. Similarly, with regard to the collection of betterment charges in W.P.13135 of 2006, there is no clarity from the respondent. An amount of Rs.10,16,800/- is sought to be recovered from the petitioner under this head. It is to be noted that an amount of Rs.29,260/- was demanded towards development charges. G.O.Ms.No.65, dated 05.02.1987, indicates the cost of development of land as follows.
2 (C) (c). The cost of development of land shall include:-
(i) the cost of formation of roads with black topping, construction of culverts, bridges, drains, footpaths etc.;
(ii) the development of parks and playgrounds along with avenue tree plantations;
(iii) the cost of provision of water and electric supply;
(iv) the cost of sewerage. The sewerage lines invariably shall be got done by the Municipal Corporation only even in cases where the Municipal Corporations agreed for the execution of the works referred to in items (i), (ii) and (iii).
(v) The cost of external developments like the formation of new road or widening of the existing roads leading to the layout colony, the replacement of the water and electric mains leading to the layout areas and any other works which are to be carried out by the Municipal Corporation outside the layout area so as to ensure the provision of the amenities to the required standards. This amount shall not be less than Rs.10 per square meter.
But, it cannot be equated to the betterment charges which has no basis. However, an indication can be found in the said GO in II (b) which deals with regulation of unauthorised layouts and it enables the Municipal Commissioner to collect the charges for the following.
II (A).
(B).
(a) the betterment charges along with the charges for the external development;
(b) the proportionate cost of open spaces to be provided in such layout for community purposes;
(c) the proportionate charges for the approval of the layout;
and (d) other legitimate charges if any.
Thus, the collection of betterment charges is linked with the sanction of layout. When there is no necessity for sanctioning a layout in cases of this nature, the collection of betterment charges also becomes unwarranted.
17. These cases are being disposed of on the basis of peculiar facts of the cases. This order should not be construed as barring the respondents absolutely from collecting shortfall in open space charges and betterment charges in respect of plots in unauthorised lay outs. In appropriate cases, the resolutions of the respective Municipal Corporations can be implemented.
W.P.13135 of 2006:
18. In the circumstances, the respondent is directed to refund the amount of Rs.46,46,800/- collected towards 10% of the open space cost and betterment charges while sanctioning the permission for construction of administrative office complex from the petitioner therein.
W.P.No.20787 of 2009:
19. The respondents are directed to process the application of the petitioner for construction of the building without insisting for payment of shortfall in open spaces contribution charges as mentioned in the impugned notice dated 01.09.2009 within a period of three months from the date of receipt of a copy of this order and dispose of the same in accordance with law.
20. These Writ Petitions are, accordingly, allowed to the extent indicated above. No costs. Miscellaneous Petitions pending, if any in this Writ Petition, shall stand closed.
______________________________ A.RAMALINGESWARA RAO, J Date:25.07.2014