Andhra HC (Pre-Telangana)
Smt. M. Sarojini And Ors. vs Government Of Andhra Pradesh, Rep. By ... on 3 September, 2003
Equivalent citations: 2004(2)ALT296
ORDER D.S.R. Varma, J.
1. This writ petition is filed seeking writ of Certiorari calling for the records relating to Lr.No. 2669/MP2/HUDA/97 dated 8-6-1399 by HUDA and consequential letter No. G/129/BP/1777/97, dated 19-6-1999, of Serilingampally Municipality and P.O. No. G/1/UC/MCS/TPS/2000-2001, dated 4-12-2000 , of Serilingampally Municipality and quash the same.
2. The facts, which are not in dispute, are that, the petitioners who are 27 in number purchased different extents of land to talling to Ac.4.70 guntas from one P. Sarveshwara Rao in Sy.Nos. 55 to 59 of Madhapur Village under registered sale deeds. All the petitioners made a joint application for development of the land to the 2nd respondent-Hyderabad Urban Development Authority (for short 'the Huda') through letter, dated 4-7-1996. Upon which the 2nd respondent through letter dated 10-6-1997 directed the petitioners to remit an amount of Rs. 8,00,000/- towards development charges. Further the 2nd respondent also required the petitioners to submit affidavits that the land in the lay out application is within the urban land ceiling exemptions in terms of G.O.Ms.No. 733 and the total land held by them does not exceed the ceiling limit. By letter, dated 6-7-1997, the petitioners had intimated about the remittance of the above said amount demanded towards development charges and they also gave affidavits as required by the 2nd respondent with regard to applicability of G.O.Ms.733. The petitioners also obtained land use certificate, dated 10-7-1997, from the 2nd respondent. In the said certificate the land under the lay out was shown as earmarked for residential purpose in the zonal development plan. On 22-7-1997 the 2nd respondent intimated the 3rd respondent-Serilingampally Municipality that permission for development of the lay out was granted. Consequently the 3rd respondent granted lay out permit after collecting an amount of Rs. 3,67,500/-towards security fee and lay out fee from the petitioners. After the receipt of the said permission, the petitioners commenced the construction work in the lay out. At that stage, the Assistant Engineer of Irrigation Department, directed the petitioners to stop the construction on the ground that the lay out was subject to submergence in Durgam Cheruru (Tank). Similarly directions were also issued to the petitioners by the revenue authorities. However, the revenue authorities again approached the 2nd respondent for clarification in this regard. Further the 2nd respondent through letter No. 4182/MPL/ HUDA/96, dated 25-10-1997, had intimated the proper facts to the Collector, Ranga Reddy District. In the said letter the Collector was informed that any attempt to keep the lay out in abeyance and to cancel the permission already given is unlawful and may also lead to legal complications. After receipt of the said information, in a meeting at the Secretariat by the Secretary, Revenue Department, the Joint Collector, Rang Reddy District through letter No. 137/6088/ 95, dated 17-1-1998, informed the 3rd respondent - Municipality that the lay out can be released and the petitioners could be permitted to continue the construction. Consequently through letter, dt. 23-1-1998, the petitioners were permitted to continue the construction work. While the construction work was in progress, the 2nd respondent through letter, dated 17-11-1998, issued a show cause notice to the petitioners for cancellation of the draft lay out on the ground that the land in which the layout falls is in the core area and G.O.Ms.No. 733 would not be applicable. In the said notice it was indicated that initially permission was given on the premise that the G.O.Ms.No. 733 was applicable, as the Madhapur would fall in peripheral area and since the Government had issued a memo dated 3-9-1997 to the contrary, the petitioners were called upon to show cause why the draft layout permission should not be cancelled. In the show cause notice, the said memo was referred at item No. 3 of the reference. In the said show cause notice, it was further indicated that U.L.C. clearance is required, the petitioners filed their objections and however considering their objections, the 2nd respondent passed the impugned proceedings dated 8-6-1999 cancelling the draft lay out mainly in two grounds viz., (1) U.L.C. clearance is required for the subject land since the same is declared as a core area, and (2) the subject land was in close proximity to Durgam Cheruvu and a part of the site is falling under Full Tank Level (for short "the F.T.L") of the said tank. It was further directed to remove the compound wall immediately, which was constructed pursuant to approval of draft lay out. Aggrieved by the orders of cancelling 8-6-1999, the present writ petition is filed.
3. The official respondents filed counters denying all the allegations made by the petitioners and justifying their action in cancelling the draft lay out.
4. Sri E.Manohar, the learned Senior Counsel appearing for the petitioners, firstly contended that the subject land is squarely covered by G.O.Ms.No. 733 and hence no exemption is required from the authorities under the Urban Land (Ceiling And Regulation) Act, 1976 (for short 'the Act'). Secondly he contended that the show cause notice dated 17-11-1998 and the cancellation order dated 8-6-1999 were subsequent to issuance of G.O.Ms.No. 733 and hence the memo, dated 20-11-1997, issued by the Government at a later date bringing the Madhapur Village into the core area would only be prospective in effect and cannot take away the right already accrued to the petitioners under G.O.Ms.No. 733. Thirdly he contended that after completing all necessary formalities as required by the 2nd respondent - HUDA, approval had been given and consequently the 3rd respondent -Municipality also accorded permission to the petitioners to proceed with the construction. Therefore, according to him, the draft lay out cannot be cancelled on the ground that the memo dated 3-9-1997, said to have been issued by the competent authority under the Act at a later date, brought the Madhapur Village under 'core area'. Fourthly he contended that even though the construction was kept in abeyance for a brief period by the 3rd respondent - Municipality, at the instance of the 2nd respondent - Huda itself, the same had been withdrawn and the petitioners were again permitted to proceed with the construction work and therefore, the same cannot be found fault with and the permission cannot be withdrawn on the ground that the Madhapur Village had been declared as 'core area' through memo, dated 3-9-1997. He submitted that subsequently after the completion of the construction, the houses were registered in favour of the aspiring purchasers and some of them were occupied by such persons. Fifthly he contended that the other grounds shown in the order of cancellation, dated 8-6-1999, that the subject land is partly falling under F.T.L. of Durgam Charurvu is also not correct. He further submitted that the petitioners have taken necessary steps and have established an independent sewerage plant to treat the sewerage and they are utilizing the waste from the sewerage plant for the gardening purpose and that the petitioners have also constructed a compound wall. He stated that a separate greenery development programme was also undertaken by the petitioners as required by the 3rd respondent through letter No. G-129/ BP/1777/97, dated 23-10-1998.
5. With these submissions, the learned Senior Counsel sought setting aside of the impugned proceedings of cancellation of the draft lay out.
6. Per contra, the learned Senior Counsel Sri S.S. Prasad, appearing for the 2nd respondent-HUDA, firstly contended that neither the revenue authorities, nor the Assistant Engineer, who were referred to in the writ affidavit were made as parties to the writ petition. He pointed out that in the letter No. B7/6088/95, dated 17-1-1998, addressed by the Joint Collector, Ranga Reddy District to the 3rd respondent - Municipality, a reference was made with regard to the meeting held in the chambers of Secretary, Revenue Department along with the Huda Officials. But the revenue authorities were not made as parties. Secondly he contends that in all the letters addressed by the 3rd respondent or the 2nd respondent, the draft approval is subject to the provisions of the Act and, hence it is not open for the petitioners to contend that they are only governed by G.O.Ms.No. 733 and not by the provisions of Act and hence according to him, the petitioners are bound to obtain the clearance from the authorities under the Act. Thirdly he contended that since the cancellation of draft layouts in Sy.Nos. 43 to 49 of the very same Madhapur village were not challenged and have become final, the present subject land which stands on the same footing, is bound by the said cancellation. He further contended that in the show-cause notice, dated 17-11-1998, the thrust was on the core area, but through proceedings, dated 25-10-1997, the subject matter of discussion was much about F.T.L. of Durgam Cheruru. In fact the aspect of F.T.L. was also shown as a ground for cancellation. Nextly he contended that the inclusion of Madhapur Village in the master plan was effected in the year 1980 and the same was declared as peripheral through memo No. 139040/UC.II(2)/88-4, dated 18-4-1989. It was given effect to from 16-10-1978 and consequent upon the inclusion of Madhapur village and Guttala Begumpet in Fathenagar Gram Panchayat in core area, they became part of urban agglomeration. He stated that subsequently the memo dated 18-4-1989, whereby the Madhapur and Guttala Begumpet were declared as peripheral areas, was withdrawn through memo No. 13927/UC.II(2)/97-3 dated 20-11-1997, by the Government. The net result of all these proceedings is that the Madhapur and Guttala Begumpet formed part of Fathenagar and by virtue of principles of restitution, the application of Act would get restored with effect from 16-10-1978. Hence, he contends that by virtue of Section 5 (3) of the Act any transaction made between 16-10-1978 and 20-11-1997 are null and void and that since the present purchase of land by the petitioners is in the years 1995 and April, 1997, they have to be treated as void. Finally he contends that the only ground to reject the claim of the petitioners while cancelling the draft lay out was that the petitioners did not approach the authorities under the Act.
7. With these submissions he sought for dismissal of the writ petition and confirmation of the impugned proceedings
8. Sri. Y.Rama Rao, learned Government Pleader appearing for the 1st respondent, while supporting the stand of the 2nd respondent in all fours, further submitted that no other proceedings was issued between the memo dated 18-4-1989 and the memo issued by the Government on 20-11-1999.
9. From the above rival contentions, the following issues would arise for my consideration:
(1) Whether G.O.Ms.No. 733 Revenue (UC.II) Department dt. 31-10-1988 is applicable to the case of the petitioners and whether the memo No. 13927/UC.II(2)/97-3 dated 20-11-1997 issued by the Government withdrawing the earlier memo dated 18-4-1989 and thereby including the Madhapur and Guttala Begumpet into the core area of Hyderabad Urban Agglomeration, would have prospective operation?
(2) Whether a portion of the subject land falls under the F.T.L. of Durgam cheruvu?
(3) Whether the revenue authorities are the necessary parties?
(4) Whether the cancellation of draft lay outs in relation to Sy. Nos. 43 to 49, since have attained finality, as not being challenged, are binding on the petitioners?
10. Point No. 1: In order to advert this issue, it is necessary to look into the provisions of the Act. Section 2(n) defines 'urban agglomeration'. The relevant portion of 2(n) (A) (i) and (ii) is extracted as under for ready reference:
(i) the Urban agglomeration specified in the corresponding entry in column (2) thereof and includes the peripheral areas specified in the corresponding entry in column (3) thereof; and
(ii) any other area which the State Government may, with the previous approval of the Central Government, having regard to its location, population (population being more than one lakh) and such other relevant factors as the circumstances of the case may require, by notification in the Official Gazette, declare to be an urban agglomeration and any agglomeration so declared shall be deemed to belong to category D in that Schedule and peripheral area therefore shall be one kilometre;
11. Now it is necessary to look into the corresponding entry in column (2) of schedule I. From a perusal of the said entry it could be seen that Fathenagar and Moosapet Gram Panchayats are included in the peripheral areas. In this regard it is also necessary to look into memo No. 139040/ UC.II(2)/88-4 dated 18-4-1989. The relevant portion is extracted as under for ready reference;
"Government have examined the matter based on the record and legal opinion, Government are advised that it is a fact that at the commencement of the Act Fathenagar Gram Panchayat was included in Column (2) of the Schedule - I to the Act. But by notification No. C1/3102/78, dated 16-10-1978 Madhapur and Fathenagar Gram Panchayats were reconstituted by excluding from their jurisdiction. Madhapur and Guttala Begumpet village and a new Madhapur Gram Panchayat with Madhapur and Guttala Begumpet villages as constituted which is outside the core area of Hyderabad Urban Agglomeration.'
12. Further at paragraph No. 5 it is stated as under:
"............Consequent on this change the status of the Guttala Begumpet (V) has changed from the core area to the peripheral area with effect from 16-10-1978. It is therefore clarified that Guttala Begumpet (v) of Hyderabad Urban Agglomeration is in the peripheral area of Hyderabed Urban Agglomeration with effect from 16-10-1978."
13. From the above it is clear that Madhapur and Guttala Begumpet villages have been excluded from the Fathenagar Panchayat limits and have been constituted as separate panchayats and consequently the Guttala Begumpet village had been changed from core area to peripheral area with effect from 16-10-1978. From the above provision and also from the clarification issued by the Government through the said memo dated 18-4-1989 it is abundantly clear that Madhapur village is declared as peripheral area with effect from 16-10-1978, excluding from the core area. It is further to be noted that as per the above memo, even in the master plan, the Madahpur Gram Panchayat was shown within the limits of peripheral area of Hyderabad agglomeration. Therefore, the situation now undoubtedly is that the Madhapur Village where the subject lands situate within the limits of peripheral area of urban agglomeration not only by virtue of the memo dated 18-4-1989, but also as per the master-plain. It is further to be noted that 'core area' is not defined by the statute. Core area perceivably, is an area identified by the Government as an area of some significance for various reasons.
14. The undisputed legal position is that whether it is 'core area' as identified by the Government or 'peripheral area' as defined under the Act, the procedure prescribed under the Act has to be followed. The relevant procedure is to file a declaration under Section 6(1) of the Act and exemption also can be granted by the competent authority under Section 20 of the Act, in both the cases. It is significant to note that nowhere it is stated, either under the statute, or in any proceedings of the Government that such exemptions have to be obtained only for those lands, which fall within the limits of core area.
15. Be that as it may, the Government issued G.O.Ms.No. 733 dated 31-10-1988, wherein it has been categorically stated at paragraph No. 6 as under:
"Now, therefore in exercise of the powers conferred under Section 20(1)(a) of the Urban Land (Ceiling & Regulation) Act, 1975 and of all other powers hereunto enabling and in suppersession of all the other orders issued previously in this behalf from time to time, the Government of Andhra Pradesh hereby accord:
(a) exemption of the vacant land or the agricultural land which is likely to be used for non-agricultural purposes at the option of the holder thereof, or both, to a maximum, extent of five acres situated within the peripheral areas as specified in column (3) schedule-l to the Urban Land (Ceiling & Regulation) Act, 1976 of the Hyderabad Urban Agglomeration, Visakhapatnam Urban Agglomeration, Vijayawada Urban Agglomeration, Guntur Urban Agglomeration, Warangal Agglomerations in excess of the ceiling limit, from the provisions of Chapter-Ill of the said Act: and
(b) ...............'
16. A bare perusal of the above G.O. makes it clear that the Government exercising its jurisdiction under Section 20(1)(a) of the Act and also in supersession of all other orders issued previously, granted exemption of the vacant and agricultural lands within the peripheral area, up to an extent of five acres of land in excess of ceiling limit. It is also indicated therein that the Housing, Municipal Administration and Urban Development Department will issue necessary orders separately. It is further clear that the vacant land within the prescribed limit had been totally exempted from the operation of the provisions of the Act. From the language it is clear that the Government in exercise of its powers conferred under the Act, granted sweeping exemption upto an extent an Ac.5.00 for transferring by way of sale, mortgage, gift, lease or otherwise, from the purview of the Act.
17. A combined reading of this G.O. and the memo referred to above dt. 18-4-1989 makes it further clear that the land in Madhapur Village, was changed from core area to peripheral area with effect from 16-10-1978 and an extent of Ac.5-00 had been exempted from the applicability of the Act and hence no further exemption need be obtained by any holder of vacant land in the peripheral area as mentioned in the G.O.Ms.No. 733 read with the memo dated 18-4-1989.
18. This view if fortified by the judgment of this Court in Nalla Yakoob v. the Govt. of A.P., 1993 ALT Supp. (1) 616 The relevant portion at paragraph No. 3 is extracted as under;
"Now at issue, is whether the aforesaid piece of land in 1093 Sq. Metres, is fit to be exempted or is liable to be surrendered as an excess vacant land. In view of the issuance of G.O.Ms. No. 733, dated 31-10-1988, the earlier G.O.Ms.No. 323 M.A. dated 17-5-1977 has lost its significance. The liability to surrender the excess land has to be determined now in the context of G.O.Ms.No. 733 Revenue (UC-2) Department dated 31-10-1988 and not otherwise. This G.O.Ms.No. 733 dated 31-10-1988 has been issued by the Government in exercise of its powers under Section 20(1)(a) of the Urban Land (Ceiling and Regulation) Act, 1976 enunciating a policy to grant exemption of vacant land in the peripheral area as specified in column (3) of Schedule-I to the Urban Land (Ceiling and Regulation) Act, 1976 prescribing a maximum of 5 acres of land, that too, after making provision for roads, open spaces, hospitals and school. This is a generous exemption granted not contemplating or making any application by any individual. This exemption is automatic, provided, two conditions are complied; namely, (1) that the land is in peripheral area; and (2) that the maximum extent is five acres exclusive of the land set apart towards roads, open spaces, school and hospital."
19. The cumulative and conclusive effect of the memo dated 18-4-1989, G.O.Ms.No. 733 and the above judgment, is that the Madhapur village where the subject lands are situated is within the peripheral area and the Government by issuing G.O.Ms.No. 733 had totally exempted prescribed extent of land subject to certain conditions, exercising its jurisdiction under Section 20(1)(a) of the Act.
20. It is to be further seen that the object behind the issuance of G.O.Ms.No. 733 is to meet the scarcity of housing accommodation in the urban agglomeration. It was also noted therein that the entire building activity has come to a stand still within the peripheral area of urban agglomeration. When once a blanket exemption under Section 20(1) was granted, necessity of obtaining exemption from the authorities under the Act does not arise. It amounts to saying that the lands, which were already statutorily exempted, are sought to be exempted once again. Any such demand is totally absurd and irrational and also contrary to the judgment referred to supra.
21. Now it is to be seen and also as submitted by the standing counsel appearing for 2nd respondent- Huda and the Government Pleader appearing for the 1st respondent, that there is no change in this position till the issuance of the memo dated 20-11 -1997 withdrawing the orders issued in memo dated 18-4-1989. The said memo dated 20-11-1997 is extracted as under for ready reference:
"GOVERNMENT OF ANDHRA PRADESH REVENUE (U.C.II) DEPARTMENT Memo No 13927/UC.II(2)/97-3, Dt: 20-11-97 Sub: Urban Land ceiling - Hyderabad Urban Agglomeration- Madhapur and Guttaia Begumpet- Located in core area-Orders-lssued-Reg.
Ref: 1. Govt. Memo No. 139040/UC.II(2)/ 99-4, dated 18-4-89.
2. Govt. Memo No. 50885/UC.II(2)/ 90-1, dated 4-6-90.
3. From the Comnr. & I.O. of Registration and Stamps, Hyd. Lr.No. 20/29887/96 dated 10-2-97.
Government after careful examination of the matter hereby withdraws the orders issued in the Memo 1st cited.
Therefore, the village Madhapur and Guttaia Begumpet falls in the core area of Hyderabad Urban Agglomeration.
J. Rambabu Principal Secretary to Government"
22. By virtue of this withdrawal, Madhapur village and Guttaia Begumpet would fall within the limits of core area of Hyderabad urban agglomeration, with effect from the date of the G.O.
23. Now the question would be as to what would happen to the transactions that took place between 16-10-1978 as stated in the earlier memo dated 18-4-1989 and the later memo dated 20-11-1997.
24. The contention of the learned Senior Counsel Sri Prasad appearing for HUDA is that when once the letter was issued by the Government deleting the Madhapur village and Guttala Begumpet from the limits of peripheral areas and including the same in the Hyderabad Urban Agglomeration, the status quo anti should prevail. In other words, his submission, would be that clock has to be set back to the date of 15-10-1978, till which date the provisions of the Act were applicable, to all the excess vacant lands. It is not in dispute that innumerable transactions had taken place by virtue of the blanket exemption given by the Government under G.O.Ms.No. 733, of course subject to the conditions and the limitations mentioned therein. What should happen to all those transactions is the question.
25. As per the contention of the counsel for HUDA, all those individuals who have disposed of their lands by virtue of the exemption granted under the said G.O.Ms.No. 733, have got to be automatically brought under the fold of the provisions of the Act. If this proposition is to be accepted, all those original vendors who cannot be traced now. have to file the declarations under Section 6(1) of the Act. This is a mere impossibility. Several lands have been sold after obtaining necessary permissions from the concerned authorities. At this stage, i.e., after a decade if, all those transactions were held to be void, as contended by the counsel for the HUDA, it would lead to a chaotic situation.
26. No doubt the Government has the authority, and a matter of policy, to declare any land as core area or peripheral area for valid reasons and this policy decision cannot be in normal course, interfered with by this Court.
27. In the present case such policy decision appears to have been taken by the Government and issued memo dated 20-11-1997 and for the above reasons, the imperative conclusion that can be arrived at is, any such policy decision through the said memo, should only be prospective in operation, unless and until it is explicitly made retrospective.
28. It is further not in dispute that the petitioner have purchased the extent of less than 1,000 sq. metres, which is permissible limit under the Act.
29. For the foregoing reasons, I hold that for the extents held by the petitioners, no further exemption need be taken from the competent authority under the Act, inasmuch as blanket exemption exercising its jurisdiction under Section 20(1 )(a) of the Act, had already been granted by the Government through G.O.Ms.No. 733. In other words in view of the undisputed fact that the petitioners purchased the lands in the year 1995 and in the month of April, 1997 i.e., prior to the withdrawal dt. 20-11-1997, their purchases are saved by virtue of operation of G.O.Ms.No. 733, and also in view of the permissible extents purchased and held by them. I further hold that the memo dated 20-11-1997 be given prospective effect only without affecting the rights of the individuals who acted pursuant to G.O.Ms.No. 733.
30. It is interesting to note that even the 2nd respondent HUDA also understood that G.O.Ms.No. 733 was applicable to the petitioners and that is the reason why, in the letter dated 10-6-1997 while requiring the petitioners to comply with certain conditions, asked the petitioners to file affidavits stating that this lay out application was within the U.L.C. exemption in terms of G.O.Ms. No. 733 dated 31-10-1989 and the total lands held does not exceed the ceiling limit held by the applicant or spouse and unmarried children.
31. At this stage it is represented by the Government Pleader Sri. Y. Rama Rao that the very memo issued by the Government dated 20-11-1997 is the subject matter of dispute in W.P.No. 32488/1997 and the same is pending. The pendency of the said writ petition is not relevant nor any adverse decision thereof would effect the rights of the petitioners. And on the other hand, if the writ petition is dismissed, it would add more strength to petitioners.
32. Accordingly point No. 1 is answered in favour of the writ petitioners.
33. Point No. 2: In this connection it is to be seen that upon the instructions of the Collector, Rangareddy District, the draft lay out has been kept under abeyance which was in force for a short period. Pursuant to the stay, the 2nd respondent addressed a letter to the Collector in Lr.No. 4182/MP.2/ HUDA/96 dated 25-10-1997 informing the Collector that any attempt at this stage to keep the lay out in abeyance or cancel the permission already given is unlawful. In the said letter several reasons were mentioned to arrive at such a conclusion. That first reasons is that the master plan prepared by HUDA and published in 1980, was by collecting the data from different sources including the revenue department. It is stated that the master plan was notified and as per the scale, zones were segregated and then the new maps were prepared basing on the base maps of Survey of India which are authentic and drawn in 1: 25,000 scale. Nextly the water spread area of the any cheruru or tank in the zonal development plan was based on data available with the irrigation department as well as Revenue Department. Durgam Cheruru is one of the tanks identified for the purpose of protection. The letter dated 25-10-1997 further reads as under:
"In one of the memoirs of Irrigation Department for major basin Krishna (Musi River) Volume-Ill, the description about Durgam Cheruvu was mentioned where, among with other details, the water spread at F.T. level is recorded as Ac.65.12 with a ayakut of 185.12 acres. The information containing in the irrigation records in tallying with that of base maps of Survey of India and that of the area notified in the Zonal Development Plan for Kukatpally zone. It is also to inform you that before notifying the Master Plan/Zonal Development Plan, the objections and suggestions from various Government departments including Revenue, Irrigation and also from the collectors concerned were called for. Later on, the Zonal Development Plans were notified to the public for calling their objections and suggestions and after the scrutiny of the same the Zonal Development Plans were sent to the government for final approval and publication.
Similar exercise was also made for preparing the Zonal Development Plan for Kukatpally Zone, which was notified by the Government in 1986. It may be noted that, no Department including Collector, R.R. District has raised any objection regarding the issue related to Durgam Cheruvu at the time of notification or subsequently.
............Several survey numbers in the rectangular block which were earlier notified in the Zonal Development Plan for residential, commercial, public and-semi-public use were now suggested to be converted into recreational use and water-body so as to prevent further permissions in them. Draft variation proposals were also submitted to the Government along with the letter.
With regard to the construction of retaining wall it may be mentioned that unlike plotted lay out a permission for group housing entails the developers for construction of compound wall for the entire lay out. If any compound wall is already in existence the developer can retain the wall. The concerned municipality will have to collect necessary fees for construction of such compound wall.
In view of the above, it is to inform the Collector, R.R. District that any attempt at this stage to keep the lay out in abeyance as to cancel the permission already given is unlawful and hence it may lead to legal complications."
34. The above letter is not in dispute, since the same is made available to the court by the 2nd respondent at the instance of the Court upon its reference being made by the petitioners in the writ affidavit.
35. The above extracted contents of the said letter speak for themselves about the state of the tank. It could be seen that the F.T.L. is recorded as Acs. 65.12 and the information containing in the irrigations records is tallying with the base maps of the survey of India and that of the area notified in the Zonal Development Plan for Kukatpally zone. It also appears that objections and suggestions from various Government departments including the revenue department and the concerned authorities were called for and then only the Zonal Development Plans were published after thorough scrutiny and the same were sent to the Government for final approval and publication. It also appears that no department including the Collector, Ranga Reddy District raised any objection in this regard. Therefore, the F.T.L. of Durgam Cheruvu is Acs.62.12 with an ayakat of Acs. 185.12 makes it further clear that no part of the draft lay out does fall within the F.T.L. of Durgam Cheruvu.
36. It is to be further seen that all the objections raised earlier by the Collector have been refuted effectively by the said letter addressed by the HUDA dated 25-10-1997. A perusal of the said letter would only disclose that the contents of the said letter are not casual and the observations recorded are based on certain authentic information.
37. Further, the Collector in his letter dated 8-10-1997 in D.O.Lr.No. B7/6088/95 states that it is understood that the subject lands are falling within the residential zone of the land use in the master plan. But on his personal verification the entire land is falling within the F.T.L. of Durgam Cheruvu. It is indiscernible as to how the Collector could come to such a conclusion contrary to the master plan, in which the subject land is identified as residential zone.
38. It is further interesting to note that in the order of cancellation of draft lay out, it is stated that only part of the lay out is falling in the F.T.L. of Durgam Cheruru. As stated already, all the contradictory versions have been effectively answered by the proceedings issued by the HUDA itself dated 25-10-1997.
39. The impugned cancellation order dated 8-6-1999 which was issued by the HUDA, in my considered view, ignored its own finding recorded in the letter dated 25-10-1997 in this regard, nor any special or additional reasons were recorded to take a different stand. Nothing could be pointed in this regard, from the record either. The Commissioner of Municipality is the 3rd respondent. While lifting the orders of abeyance, through Lr.No. G-129/BP/1777/97 dated 23-10-1998 also, he referred to the letter dated 25-10-1997 and required the petitioners to comply with the following directions:
(1) The Layout owner shall construct sewerage treatment plan as per ISI standards in consultation with H.M.W.S. & S.B. (2) The sewerage water sullage water should not be drained into the Durgam Cheruvu.
(3) You should also provide greenery in and around your lay out area.
(4) You should also make necessary arrangements for free flow of rain water into cheruvu.
(5) You should also agree to the restrictions which may be imposed while releasing the final lay out.
(6) You should also contribute to any project that was taken up for preserving the lake.
(7) You are also permitted to construct compound wall all around your lay out boundary as approved in the site plan.
40. It is not in dispute that all the above conditions have been complied with and, therefore, finally the petitioners were permitted to construct the compound wall around the layout and also to proceed with the construction.
41. Another learned single Judge of this Court ( Goda Raghuram J) called for the status report from the 2nd respondent-HUDA The said report is made part of the record and it discloses that several row houses of different types were built. However, in the said report it is pointed out that there are some violations in the constructions. But, since the said deviations are not the subject matter of the writ petition, no orders need be passed.
42. But the ground reality from the report is that several group houses were constructed in different types and it is also submitted by the learned counsel appearing for the petitioners that several transactions have already been effected and many of the purchasers have occupied as on today in their respective allotted premises. It is not in disputed that the impugned order of cancellation of lay out is after a period of 1 1/2 year from the date of its approval. At this stage in my considered view, it is not desirable to disturb the entire settled position. The question of equities may not strictly also arise in the present case inasmuch as law and facts are totally in favour of the petitioners.
43. Accordingly for the foregoing reasons, the issue No. 2 is also answered in favour of the petitioners.
44. Issue No. 3: From the above discussion it could be seen that the whole dispute and the controversy arose only because of the order of cancellation passed by the 2nd respondent-HUDA dt. 8-6-1999. What had transpired prior to that, between the HUDA Officials and the Revenue Officials is not clear from the record, nor the petitioners were never put on notice. The fact remains that the cancellation of the draft lay out is the genesis for filing this writ petition. Therefore, the reference made by the petitioners in the affidavit filed in support of the writ petition, is only incidental and the authorities like the Collector and the Mandal Revenue Officer may be proper parties, but not necessary parties. Hence, on this score, the writ petition cannot be rejected. Substantial questions have already been discussed under points 1 and 2. Hence, this issue is also answered in favour of the petitioners.
45. Issue No. 4: As regards the contention of the learned counsel for the 2nd respondent that the draft lay out in Sy.Nos. 43 to 49 which was cancelled has become final, the present cancellation of the draft lay out of the petitioners situate in the same area in Sy. Nos. 55 to 59 also should be rejected, is concerned, it is to be noted that the aggrieved parties in Sy.Nos. 43 to 49 have approached this Court by way of writ petition in W.P.No. 19576/2000 and the same had been initially allowed by the learned single Judge and when the same was challenged in W.A.No. 1966/2001, the Division Bench set aside the judgment of the learned single Judge mainly on the ground that the petitioners therein approached this Court only having been aggrieved by the proposed act of the demolition of the structures, without challenging the very cancellation of the draft lay out. From the judgment it could be seen that the Division Bench gave liberty to the petitioners therein to challenge the validity or otherwise of the cancellation of tentative or draft lay out. No information is forthcoming as to whether the liberty given by the Division Bench was availed of by the petitioners therein or not. It is further clear from the judgment of the Division Bench that no specific finding regarding the validity or otherwise of the cancellation of the draft lay out, was given. Therefore, the said judgment cannot be treated as a binding precedent on the present writ petitioners. Hence, the contention of the learned counsel for the 2nd respondent is also liable to be rejected. Accordingly this issue is also answered in favour of the writ petitioners.
46. Finally since the learned counsel for the 2nd respondent placed reliance on judgment of the Apex Court, I would like to refer to those judgments.
47. The learned counsel for the 2nd respondent relied on the judgments of the Apex Court reported in Atia Mohammadi Begum v. State of U.P. and Ors., State of A.P. and Ors. v. N. Audidesava Reddy and Ors., and Govt. of A.P. and Ors. v. J. Sridevi and Ors., Civil Appeal No. 7348/2001 dated 12-4-2002 and submitted that the Master Plan prepared as per law in force even subsequent to enforcement of the Act, should be taken into account for determining whether a particular piece of land is vacant land or not.
48. But a careful perusal of these judgments would only reveal that they relate to the question whether the agricultural land can be determined as vacant land on the basis of the subsequent master plan brought into effect after the Act coming into force. In the present case, that question does not arise. The master plan in the present case had come into being in the year 1980. However, the provisions of the Act are made applicable from that year only, i.e., from the date on which the vacant land was identified in the master plan. There is no controversy at all. Further, the only question in the present case is whether the subject lands in Madhapur village are situate in peripheral area and if so, whether G.O.Ms.No. 733 dated 31-10-1988 is applicable or not. Therefore, the judgments relied on by the counsel for the 2nd respondent are neither applicable nor relevant at all to the present set of facts, particularly in view of the above discussion and findings, on issues 1 and 2.
50. For the foregoing reasons, the impugned proceedings are set aside/and the writ petition is allowed. No cost.