Telangana High Court
M/S. Gangothri Metal Industry vs The Hyderabad Metropolitan. ... on 21 December, 2020
Author: A.Abhishek Reddy
Bench: A.Abhishek Reddy
The Hon'ble Sri Justice A.Abhishek Reddy
W.P.No.27760 of 2018
ORDER
The present writ petition is filed questioning the demand notice issued by the respondent No.1 vide Letter No.509/NOC- Q/HMDA/2016, dated 16.05.2018, for payment of Rs.62,40,256/- towards conversion charges from Residential Use Zone to Conservation Use Zone including procedural charges and publication charges with regard to the Quarry Lease Application dated 06.08.2008 made by the petitioner Firm in an extent of Acs.7.20 guntas in survey No.144 of Kajipally Village, Jinnaram Mandal, Medak District, as illegal and arbitrary and consequent direct the respondents to issue No-Objection Certificate and refund along with interest all the amounts paid by the petitioner Firm to respondent No.1 towards conversion charges from Residential Use Zone to Conservation Use Zone, processing and publication charges.
2. The brief facts of the case in the present writ petition are that the petitioner has applied for grant of quarry lease to the 4th respondent through proper channel i.e., the 3rd respondent, who, in turn, has written to the 7th respondent i.e., the Tahasildar vide letter No.2746/Q/2008, dated 29.07.2016, wherein he has sought information regarding inspection and issue of NOC for grant of quarry lease, and the 7th respondent, in turn, has issued a letter vide No.B/4544/2016, dated 09.08.2016, stating that the subject land is a government land and it has no objection to accord permission to quarry lease for mining in Sy.No.144 to an 2 AAR,J WP.No.27760/2018 extent of Ac.3.8 hectares of Khajipally village in favour of the petitioner subject to obtaining necessary consents from the HMDA, Hyderabad, and that vide 3rd reference cited (Lr.No.C/5216-1/2015, dated 18.06.2015), they have issued NOC in favour of M/s.Buildmate Sand Pvt.Ltd., for an extent of Ac.3.00 Hectares. Along with the same, the Tahasildar had annexed site map showing the area of mining. Thereafter, the 3rd respondent has written a letter vide Lr.No.2746/QL/2008, dated 11.08.2016, to the Commissioner, HMDA, whereby it is stated that to kindly issue report in the subject matter for processing the Quary Lease application for Stone &Metal in Sy.No.144 of Khajhipally village, Jinnaram Mandal, Medak District, over an extent of 3.08 Hectates for a period of (15) years in favour of the petitioner. Subsequently, the petitioner has also made an application to the HMDA for grant of NOC vide application No.000327/MED/CLU/U5/HMDA/28102016, dated 28.10.2016. Initially, the said application was rejected on the ground that the change of land use Residential use zone to Miscellaneous is not agreed. Thereafter, the Secretary to Government, MA & UD (II) Department, by letter No.9975/11/2016-4, dated 25.04.2017, has clarified to the HMDA, which reads as follows:
"I am to invite your attention to the references cited and to inform that as the Assistant Director, Mines & Geology Department has stated that "M/s.Gangotri Metal Industry" is having first priority for grant of Mining Lease. The Metropolitan Commissioner, Hyderabad Metropolitan Development Authority is requested to collect the Conversion 3 AAR,J WP.No.27760/2018 charges in terms of orders issued in G.O.Ms.No.223, MA&UD (II) Dept., dated 30.08.2016, from M/sGangotri Metal Industry" and inform the government for taking further action in this matter."
3. Thereafter, the Commissioner, HMDA, vide letter, dated 06.06.2017, has written to the petitioner herein to subject fresh proposal for change of land use. Based on which, the petitioner again applied fresh application vide application No.002940/MED/ CLU/U6/HMDA/19082017, dated 19.08.2017. Thereafter, the impugned order, dated 16.05.2018, vide Lr.No.509/NOC- Q/HMDA/2016, came to be passed directing the petitioner to pay a sum of Rs.58,40,256/- to pass necessary orders for change of land use.
4. The main contention of the petitioner is that the official respondents i.e., the HMDA cannot seek exorbitant charges for conversion of the land from residential use zone to Conservation Use Zone, that the demanded amount is almost half of the value of the land. That the land is not a private patta land whereby the petitioner would be benefited and is only a leaseholder. The respondent No.1 would had been justified in demanding the payment of the amount if the petitioner has sought for conversion of a private patta land, but in view of the fact that the land is a government land, the lessee is not going to be benefited by the said conservation. That the ownership of the land will still remain with the government and will not be transferred in favour of the petitioner herein, therefore, the impugned order asking the petitioner to pay the conversion 4 AAR,J WP.No.27760/2018 charges is not only contrary to the provisions of the Act but arbitrary exercise of power not vested with the authority.
5. Sri P.Venugopal, learned Senior Counsel, has relied on the judgment of this Court in W.P.No.20932 of 2008, dated 21.11.2008.
6. Sri Narasimha Goud, learned Standing Counsel, vehemently opposed the maintainability of the writ petition stating that the petitioner has an alternative remedy of appeal, and moreover, the Government itself has directed the HMDA to collect the conservation charges and drawn the attention of this Court to the letter, dated 25.04.2017, vide Letter No.9975/II/2016-4. That, unless and until the petitioner challenges the letter No.9975/II/2016-4, dated 25.04.2017, the present writ petition filed challenging the consequential impugned letter is not maintainable. That, once the quarrying takes place, the land cannot be used for any other purpose and has relied on the judgment reported in Sri K.Satyananda Patnaik and others v. The Hyderabad Urban Development Authority and others1 and has directed the attention of this Court to Sections 2(2), 2(8) and 15(5) of the HMDA Act, 2008.
7. For better appreciation of the facts of this case, it is important to extract Sections 2(2), 2(8) and 15(5) of the Act, which read as follows:
Section 2(2) defines 'Agriculture Use' means any land used for cultivation of crops, plants, vegetables, 1 2016 (3) ALD 600 DB 5 AAR,J WP.No.27760/2018 growing of trees, orchards and includes allied activities like animal breeding and rearing, dairying and poultry.
Section 2(8) defines 'Development' with its grammatical variations means the carrying out of building, engineering, mining or other operational in, on, over or under land or the making of any material change in any building or land or both, and includes redevelopment, reclamation of land, conservation or environment, forming of layouts and sub-division of any land into plots and development of amenities.
Section 15 deals with modification to the Metropolitan Development Plan and Investment Plan and sub-section (5) reads as follows:
"The Metropolitan Development Authority shall levy such fees and conversion charges from the owners as applicable and as may be prescribed in any such modification effected to the Metropolitan Development Plan and Investment Plan."
8. Section 15 empowers the HMDA to prepare a report together with necessary plan, any such modification, and submit to the government for approval and prescribes the procedure to be followed if any, modification is to be made in the master plan. Section 15(5) makes it abundantly clear that the authority can levy such fee and conversion charges from the owners as applicable and as may be prescribed any such modification effected to the Metropolitan Development Plan and Investment Plan.
9. In the case reported in K.Satyananda Patnaik (supra), which is relied upon by the learned Government Pleader, the 6 AAR,J WP.No.27760/2018 facts are entirely different, in that particular case, the lands are private patta lands, which are sought to be converted into plots/layout by the owners/developers. Here, in this particular case, the subject lands are Government lands, which are sought to be given on a quarry lease. A reading of Section 15(5) of the Act makes it abundantly clear that whenever a modification is sought by any owner, the owner is liable to pay the conversion charges. Admittedly, in this case, the petitioner is not the owner of the lands and the land is a government land. Section 15 makes it obligatory on the part of the owner of the land to pay the necessary charges as levied by HMDA. When the petitioner is not the owner and he is only a lessee, how the lessee can be expected to pay the conversion charges is not answered. Admittedly, when the Mining Department gives the leasehold rights for mining, they will do so by imposing the statutory fees, seigniorage, dead rent and other charges for exploiting the minerals. The learned Government Pleader has vehemently argued that the present writ petition is not maintainable in view of the fact that the impugned order is issued on the basis of the letter issued by the government itself. The petitioner without challenging the said letter cannot challenge the consequential letter issued by the HMDA. A reading of the letter issued by the government makes it clear that the same was issued without looking at the facts or the provisions of the law. Whether the said letter will have any bearing on the case can be better understood if the other provisions of the Act are taken into consideration more specifically Section 45 and 47 of the Act.
7 AAR,J WP.No.27760/2018
10. Section 45 of the Act deals with Levy of Development Charges and Section 45(3) reads as follows:
"Notwithstanding anything contained in subsection (1) no development charge shall be leviable in case of any development undertaken by the Central Government Department, the State Government Departments, or local authority."
11. Section 47 of the Act deals with Levy of User Charges and it reads as follows:
"(1) In order to recover fully or partly, the capital expenditure incurred or likely to be incurred for a provision of utilities, amenities, services of facilities provided by the Metropolitan Development Authority, the Metropolitan Development Authority may levy and collect a charge from the users, hereinafter called as the user charges.
(2) The amount of user charge to be levied and its manner of assessment shall be as may be prescribed by regulations.
(3) The Metropolitan Development Authority may assign, on such terms and conditions, as may be agreed upon, the task of providing and maintaining any utility, amenity, service or facility, within the area of its jurisdiction, to any person or licensed developer or agency including as association or body of individuals, whether corporate or not and permit them to collect such user charges from such beneficiaries and subject to such terms and conditions as may be prescribed by regulations.
(4) The provisions of Section 45 above shall mutatis mutandis apply to this Section.
(emphasis added) 8 AAR,J WP.No.27760/2018
12. A conjoint reading of both the Sections 45 and 47 makes it abundantly clear that in respect of government lands no development charges/user charges are leviable. The letter issued by the government is contrary to the provisions of the above Sections at the most they may apply to private patta lands.
13. In view of the above, this Court is of the prima facie opinion that insistence of the authority for payment of user charges/development charges from the petitioner is without any legal basis, in view of the fact that the land is not a private patta land, but it is a government land, which is only given on lease.
14. For the aforementioned reasons, the Writ Petition is allowed and the demand notice issued by the respondent No.1 vide Letter No.509/NOC-Q/HMDA/2016, dated 16.05.2018, for payment of Rs.62,40,256/- towards conversion charges from Residential Use Zone to Conservation Use Zone including procedural charges and publication charges with regard to the Quarry Lease Application dated 06.08.2008 made by the petitioner Firm in an extent of Acs.7.20 guntas in survey No.144 of Kajipally Village, Jinnaram Mandal, Medak District, is hereby set aside and consequently the respondents are directed to issue No- Objection certificate in favour of the petitioner Firm. If any other charges are required to be paid by the petitioner for 9 AAR,J WP.No.27760/2018 processing the application, after taking into account the amounts already paid, the petitioner shall be put on notice.
Miscellaneous petitions pending, if any, shall stand closed. There shall be no order as to costs.
__________________ A.ABHISHEK REDDY, J Date :21st December, 2020.
va/sur/smr