Telangana High Court
Sri Sai Balaji Township Welfare Society vs Sree Sai Balaji Developers And 2 Others on 5 June, 2023
Author: N.Tukaramji
Bench: N.Tukaramji
THE HON'BLE THE CHIEF JUSTICE UJJAL BHUYAN
AND
THE HON'BLE SRI JUSTICE N. TUKARAMJI
WRIT APPEAL Nos.65, 66 and 72 of 2023
COMMON JUDGMENT:(Per Hon'ble Sri Justice N. Tukaramji)
1. This order would resolve the Writ Appeals 65, 66 and 72 of 2023.
2. Heard Mr.Manoj Vishwanath, learned counsel for the appellants in all the writ appeals; Mr. D.Jagadeeshwar Rao, learned counsel on behalf of Mr. K.Pradeep Reddy, learned counsel for 1st respondent in W.A.No.65 of 2023; Mr. Vivek Jain, learned counsel for 4th respondent in W.A. No. 65 of 2023 and for the 1st respondent in W.A.Nos.66 and 72 of 2023; Ms. B. Lakshmi Kanakavalli, learned Assistant Government Pleader for Municipal Administration representing 2nd respondent and Mr. M. Phanindra Bargav, learned Standing Counsel for 3rd respondent in all the appeals.
3.1. The Writ Appeal, W.A.No.65 of 2023, has been preferred by Sri Sai Balaji Township Welfare Society (for short 'the Society') against the order of the learned Single Judge dated 2 HCJ & NTRJ WA_65,66&72_2023 15.12.2022 in W.P.No.41383/2022. The writ petition was filed by Sai Balaji Infra Developers (for short 'Infra Developers') wherein the inaction of the Shadnagar Municipality for not taking action in removing the compound wall, which was constructed without permission and in contravention of the conditions of the technical sanction of the Director of Town and Country Planning (for short 'DTCP'), around the layout developed by Sri Sai Balaji Developers (for short 'the developer') in spite of the representations dated 04.10.2021, 13.09.2022 and the terms of the undertaking in interim order dated 08.03.2016 in W.P.M.P.No.9345/2016 in W.P.No.7318 of 2016. 3.2. The Writ Appeal, W.A.No.66 of 2023, by the society is set against the order of the learned Single Judge dated 15.12.2022 in W.P.No.42655 of 2022 whereby prayed for direction to the Shadnagar Municipality not to demolish the compound wall of their gated community without serving notice and to set aside the notices dated 22.01.2016 and 26.02.2016 issued by the Shadnagar Municipality basing on the complaint lodged by the Infra Developers.
3 HCJ & NTRJ WA_65,66&72_2023 3.3 The Writ Appeal, W.A.No.72 of 2023, is also filed by the Society, challenging the order of the learned Single Judge dated 15.12.2022 in W.P.No.7318 of 2016 filed by the Developer to declare that the notice dated 26.02.2016 issued by the Shadnagar Municipality for removal of the compound wall, is illegal and to set aside the same.
FACTUAL MATRIX:
4.1. The Developer/Sri Sai Balaji Developers/Petitioner in W.P.No.7318 of 2016 had proposed a layout in a land admeasuring Ac.83.0825 cents in Sy.Nos.139, 140, 145, 146, 147, 150 and 151 of Solipur village of Farooqnagar mandal, Shadnagar Municipality (for short 'the layout'). The DTCP accorded technical approval on 28.05.2014 and final layout was sanctioned on 24.08.2015, by the Shadnagar Municipality. 4.2. The Infra Developers/Sai Balaji Infra Developers/ Petitioner in W.P.No41383 of 2022 also formed a residential layout within Ac.09.437 cents in Sy.Nos.523 part, 524 part and 528 part situated at Choudammagutta Thanda, Shadnagar 4 HCJ & NTRJ WA_65,66&72_2023 mandal adjacent to the layout of the developer. This layout was also approved by the DTCP on 01.05.2021.
4.3. Admittedly the developer as layout owner as per the conditions of the permission, executed deeds mortgaging 15% of the land and gifting the internal roads in favour of the Shadnagar Municipality.
4.4. While so, the Tahsildar issued a notice dated 21.09.2015 before this Court on the developer contending that 'naksha bata' pertaining to Hajipally village spread in Sy.Nos.139, 140, 141, 113 and 110, to an extent of Ac.02.15 guntas had been encroached by it and directed to restore the same within 15 days. 4.5. Aggrieved thereby the developer filed W.P.No.34227 of 2015 before this Court and this Court vide order dated 14.10.2015, set aside the notice observing that the report of Mandal Surveyor cannot be the sole basis to conclude the encroachment and to direct eviction. However, liberty was granted to the Tahsildar for initiating action under the A.P. Land Encroachment Act, 1905. Subsequently, on 31.12.2015 notice under Section 7 of the A.P. Land Encroachment Act, 1905 was 5 HCJ & NTRJ WA_65,66&72_2023 issued to the developer for which a reply dated 22.01.2016 was submitted.
4.6. Afterwards, the Commissioner, Shadnagar Municipality vide letter No.G/1762/2013 dated 26.02.2016 issued notice stating that the developer had encroached 'naksha bata' and erected advertisement projecting the layout as gated community and upon inspection, found that a compound wall constructed around the layout and closed the roads against the conditions of the approvals, thereby causing obstruction to the vehicles and general public, which is impermissible. Therefore, specifying that the layout is not as a gated community, directed to replace the advertisement boards and to remove the boundary wall constructed across the roads within 7 days. 4.7. This notice came to be challenged by the developer in Writ Petition No.7318 of 2016 before this Court wherein this Court on 08.03.2016 in WPMP No.9345 of 2016 ordered an interim suspension of the notice by recording the undertaking of the developer that the compound wall was constructed only for the purpose of protection and security of the layout and that the 6 HCJ & NTRJ WA_65,66&72_2023 internal roads within the layout were not pre-existing roads and they were laid as per the layout plan, however, after completion of the layout, the external gram panchayat roads would be joined to the layout roads.
4.8. The Infra Developers/Petitioner in W.P.No.41383 of 2022 approached this Court contending that though the developer had completed the layout, the compound wall was not removed and the approach road to their layout is blocked by that boundary wall. Therefore, submitted representations on 04.10.2021 and 13.09.2022 to the Municipal Commissioner, Shadnagar Municipality to remove the compound wall for connectivity from the layout of the developer to enhance the public utility. 4.9. Pursuant to the representations, the Municipal Commissioner vide letter No.G1/LP/1252/TPS/SDNR/2022 dated 20.09.2022 directed the developer to submit explanation by referring the undertaking given in W.P.No.7318 of 2016, within 7 days as to why the unauthorised compound wall shall not be demolished, if not to initiate action as per the Telangana Municipalities Act, 1920.
7 HCJ & NTRJ WA_65,66&72_2023 4.10. The residents of the layout of the developer formed the Society and filed Writ Petition No.42655 of 2022 by pleading that the developer had released brochure projecting the layout to be a gated community; therefore they have purchased the plots.
However, the Shadnagar Municipality had issued notice based on the complaint of the Infra Developers. Though there is another approach road to the layout of the Infra Developers, the Shadnagar Municipality had taken up proceeding without putting the society on notice. Thus sought for setting aside the notices issued by the Shadnagar Municipality.
CONCLUSIONS IN THE WRIT PETITIONS:
5.1. The learned Single Judge in the writ petition filed by the developer vide W.P.No.7313/2016 observed that admittedly the layout is not a gated community, therefore, construction of compound wall around the layout without permission from the municipality would amount to unauthorised construction, therefore it should be removed. Further, the representation of the developer in brochure cannot legalise the unauthorised construction nor it can be a ground for deferment. Even then, if 8 HCJ & NTRJ WA_65,66&72_2023 the residents of the layout or the society had any grievance regarding the compound wall projected in the brochure, it is open for them to take appropriate action against the developer, as per law. But, it cannot be a ground to stall the removal of unauthorised construction of compound wall. However, the municipality was directed to serve notice on the society before proceeding further and to complete the entire process within six weeks.
5.2. In view of the above conclusion, the writ petition filed by the Infra Developer i.e. W.P.No.41383 of 2022 was disposed of in the same terms.
5.3. The writ petition filed by the society i.e. W.P.No.42655 of 2022 was disposed of by observing that no further orders were required.
SUBMISSIONS IN APPEAL:
6. Mr. Manoj Vishwanath, the learned counsel for the Society in the appeals would submit that the developer suppressed the receipt of notices dated 21.09.2015, 31.04.2015 and reply dated 9 HCJ & NTRJ WA_65,66&72_2023 22.01.2016. The statements of the developer in the writ petition is explicating that there is no encroachment of any road. Despite the fact, the developer or the Shadnagar Municipality had not served any notice on the society. Further filing of W.P.No.7318 of 2016 by the developer and giving an undertaking without the society's knowledge is untenable and would not bind them.
Conversely, there is no documentary evidence to show that there was any encroachment by the developer. That apart, in spite of gifting of internal roads by the developer, the Court ruling that the compound wall is an illegal construction is unjust. In any case, the Infra Developers has no locus standi and the action of the developer and its sister concern i.e. the Infra Developers is hand in glove. Furthermore, failure of official respondents to file vacate petition against the interim order passed in W.P. No.7318 of 2016 coupled with the non-action by the Tahsildar for 7 long years after issuance of notice itself is establishing that there is no encroachment. Above-all, the removal of boundary wall will affect the safety and security of the people in the layout, hence prayed for setting aside the impugned order passed by the 10 HCJ & NTRJ WA_65,66&72_2023 learned Single Judge and to allow the writ petition filed by the society.
7. Mr. Vivek Jain, the learned counsel for the developer claimed that they are bound by the undertaking given in the interim proceedings in W.P.No.7318 of 2016 and the developer will abide by the orders.
8. Mr. D. Jagadeeshwar Rao, the learned counsel for the Infra Developers pleaded that in the absence of any approval of gated community, construction of compound wall around the layout blocking the roads would be in contravention of Clause 8 of the Annexure of the DTCP technical sanction which prescribes that all roads of the layout shall be open for access to the neighbouring sites. Therefore, the layout owner/developer shall not construct any compound wall or fencing around the layout. By this rule, as the compound wall is affecting the access the developer shall remove the compound wall which is obstructing the roads and even as per the undertaking given before this Court. The grievance of the residents of the layout or the society against the developer shall not be a reason to circumvent the 11 HCJ & NTRJ WA_65,66&72_2023 conditions of the permission. Thus pleaded that the Shadnagar Municipality shall act and remove the compound wall.
9. Learned Assistant Government Pleader and the Standing Counsel for the Shadnagar Municipality submitted that the municipal authority had initiated action as per the conditions of the layout approval and the statute and the further proceedings would be as per the directions passed in these appeals. ANALYSIS AND CONCLUSION:
10. We have given our thoughtful consideration and to the pleadings and the materials placed on record.
11. Undisputedly, the developer as layout owner had obtained sanctions from the authorities i.e., DTCP and Shadnagar Municipality on certain conditions.
12. The Shadnagar Municipality in its notices dated 26.02.2016 and 28.09.2022 specified that the approval of the layout is not for gated community. Neither the developer nor the society, had placed any document evidencing that the layout had been approved as a gated community.
12 HCJ & NTRJ WA_65,66&72_2023
13. The Infra Developers pointed to Clause No. 8 of the annexure in the DTCP approval that the technical layout approval was with the condition that all roads shall be opened for accessibility to the neighbouring sites and that the layout owners/developers shall not construct any compound wall/fencing around the site. This condition is not disputed by the developer or the society and there is not even a pleading that the compound wall around the layout was constructed by obtaining necessary permissions. This position has been substantiated by the undertaking of the developer while considering the interim application in W.P. No. 7318 of 2016 that the compound wall would be removed after completion of the layout. These factual aspects are establishing that the compound wall was constructed by the developer without permission, around the layout by blocking the roads.
14. Further, the layout proposal and approval was between the developer as layout owner and the authority. Therefore, we find that making the developer/layout owner responsible for 13 HCJ & NTRJ WA_65,66&72_2023 compliance of the conditions of the approval is perfectly legitimate.
15. The sale of plots in the layout is a contract between the developer as layout owner and the vendees i.e., residents of the layout. The residents of the layout being actual users, at the best, collectively can stand in the position of the layout owner to fulfil the conditions/statutory obligations imposed while granting permission to the layout. But at any rate, the society cannot take advantage on the ground that their vendor/layout owner had promised or presented the particulars of the layout in a certain way to circumvent the conditions of the layout permission. The arrangement and agreement between the vendor and the vendee of the layout plots would be inter se between them and it would not bind the authority, while implementing the conditions set out in the layout permissions. In this position, if the residents of the layout or the society got any grievance in regard to the features projected by the promoter in the layout, they may avail remedies under the law to redress their grievance, but they cannot seek 14 HCJ & NTRJ WA_65,66&72_2023 excuse in implementing the conditions imposed by the authority, while granting the layout permission.
16. For these reasons, the society's contention as to suppression of information by the developer about the notices and filing of writ petition and the undertaking given or the delay in the Tahsildar taking action under the Land Encroachment Act or the failure of the municipal authority to serve notice on the society does not make out a tenable ground to disregard the proceedings initiated by the authority for implementing the layout conditions. Nonetheless, considering the principles of natural justice, the Learned Single Judge had indulgently directed the Shadnagar Municipality to serve notice on the society before taking up further proceedings.
17. Aforesaid aspects are making out that the society, except contending that removal of the boundary wall would jeopardize their interests, failed to put up any tenable material depicting any infringement of legal right existing in its favour. That being the position, construction of boundary wall obstructing the roads around the layout without necessary sanction and against the 15 HCJ & NTRJ WA_65,66&72_2023 conditions of the layout approvals is leading us to conclude that there is no justification in the prayer of the society seeking the writ direction to restrain the authority in implementing the layout condition against the developer/owner of the layout.
18. Resultantly, we see no infirmity or illegality in the impugned orders passed by the learned Single Judge, hence they deserve to be affirmed. In effect, the appeals filed by the society fails on merit.
19. In the result, the Writ Appeal Nos. 65, 66 and 72 of 2023 are dismissed. No costs.
As a sequel, miscellaneous petitions pending if any, in these Writ Appeals, shall stand closed.
____________________ UJJAL BHUYAN, CJ _________________ N. TUKARAMJI, J Date : 05.06.2023 CCM