Andhra HC (Pre-Telangana)
R. Srinivas Kumar And Others vs The Greater Hyderabad Municipal ... on 5 August, 2011
Equivalent citations: AIRONLINE 2011 AP 130
Author: N.V. Ramana
Bench: N.V. Ramana
THE HON'BLE SRI JUSTICE N.V. RAMANA W.P.No. 5386 of 2008 and Batch 05-08-2011. R. Srinivas Kumar and others The Greater Hyderabad Municipal Corporation rep. by its Deputy Commissioner, and others. For the petitioners: 1) Mr. P. Veera Reddy (WP.No.5386/08) 2) Mr. G. Vasantha Rayudu (WP.No.21354/09)3) Mr. G. Ravi (W.P.Nos.21749 and 21750/09) For the Respondents: Mr. R. Radha Krishna Reddy Mr. Srinivasa Rao Velivela Mr. M. Dhananjay Reddy G.P. for Home Smt. Kalpana Ekbote The Advocate General <Gist: >Head Note: ?CITATIONS: 1(1974) 2 SCC 506 2(1995) 2 SCC 577 3(1995) 6 SCC 127 41995 Supp. (4) SCC 595 5(1991) 3 SCC 341 6(1995) 5 SCC 762 7(1997) 6 SCC 370 8(1999) 6 SCC 464 9(2004) 8 SCC 733 10 (2009) 15 SCC 705 11(2010) 2 SCC 27 12 AIR 1986 SC 180 13 AIR 1997 SC 152 14 (2011) 9 SCC 195 15 (2009) 17 SC 332 16 2010 (5) CTC 257 W.P. Nos. 5386 of 2008, 21354, 21749 and 21750 of 2009 Common order: The key issue raised in this batch of writ petitions is the failure of the Greater Hyderabad Municipal Corporation to comply with the elementary norms of civic administration. W.P. No. 5386 of 2008 The Petitioner states that he purchased two plots bearing Nos.10 and 11 in Sy. No. 215/A, Safari Nagar, Kondapur village, and having constructed a house in the said plots, is residing therein. According to him, as per the colony layout sanctioned by HUDA, there is a 40 feet approach road to their colony from Old Bombay main road. Every Sunday, petty vegetable and fruit vendors occupy the flanks of the said approach road and conduct their business. As a result, the passage of the approach road gets reduced thereby causing inconvenience to the general public, road users and movement of vehicles. While the matters stood thus, the Petitioner states that the Respondents - Greater Hyderabad Municipal Corporation (hereinafter referred to as the 'Corporation') issued notification dated 04.03.2008 for auctioning the leasehold rights to collect fee from vegetable, fruit, fish and mutton vendors. The auction was scheduled on 15.03.2008 at 11:00 A.M. According to the Petitioner, the Respondents are trying to legalize the unauthorized business, which the vegetable and fruit vendors were hitherto conducting on the road in question every Sunday by issuing the above notification. The Petitioner further states that the roads are meant for the movement of vehicles and for the benefit of general public, particularly the residents of the colony. The authorities of the Corporation under the Greater Hyderabad Municipal Corporation Act, 1955 (hereinafter referred to as 'the GHMC Act') are under an obligation to identify and earmark places for conducting market but they cannot permit the conducting of vegetable and fruits business on the roads otherwise meant for use by pedestrians and movement of vehicles. The Petitioner states that he, along with eleven others, made a representation to the respondents-Corporation requesting them to shift the market from the road in question but no action thereon had been taken. Instead, the Respondents are proceeding to conduct the auction as proposed. The Petitioner states that if the Respondents are allowed to conduct the auction they will be put to a lot of inconvenience. Hence, the Petitioner seeks to declare the impugned notification as being illegal and arbitrary, and consequently to set aside the same. The Deputy Commissioner, Serilingampally filed a counter stating that Kothaguda weekly market is being conduct every Sunday for the last three years. The auction of weekly market is conducted every year. The vegetable and other petty business persons conduct their business along the road side margin of Old Bombay Road of Kondapur and along the internal road which leads to MPP School, Kondapur. While admitting the issuance of the impugned auction notification, the Deputy Commissioner contended that vegetable markets are established for the convenience of and in the interest of the residents of that area. The vendors conduct their business on the pavements every Sunday evenings and they do not cause any inconvenience to the road users. The auction of the weekly market is complete and it is allotted to the highest bidder. She admitted that a representation has been received from the residents of the locality for shifting of the market, but she contended that the same is under active consideration. Hence, she prayed that the writ petition be dismissed. W.P. No. 21354 of 2009 The Petitioner claims to be the President of Model House Space Owner's Association. He states that the total extent of land of Model House complex is 4,040 Sq. yds. The Government acquired land to an extent of 588.77 sq. yds. and 281.23 Sq. yds. for formation of a new road from the main road to Dwarkapuri Colony and for widening the main road respectively. The Model House Complex ('Complex') constructed in the balance extent of 3,170 Sq. yds. in 1986. The Petitioner states that the Government did not pay any compensation for the acquisition of the land. The Petitioner states that at the time of constructing the Complex five metres open space was earmarked for parking of the vehicles of the visitors coming to the shops located in the Complex towards the western side from the Complex to the road. The said open space is being used exclusively by the members of the Petitioner-Association since the construction of the Complex. While so, the Petitioner states that the Respondents- Corporation has issued proceedings dated 31.01.2009 granting leasehold rights to contractor (G. Uma) to collect parking fee from the owners of the vehicles who park their vehicles in the parking area of the Complex, which is in exclusive possession and enjoyment of the Petitioner-Association. The Petitioner states that they made representation dated 14.04.2009 requesting the Respondents to cancel the leasehold rights granted to Smt. G. Uma, but no action thereon had been taken. Hence, the Petitioner seeks to declare the action of the Respondents in auctioning the leasehold rights in favour of Smt. G. Uma, as illegal and arbitrary. The Estate Officer of the Corporation filed a Counter stating that before auctioning the parking area in question, they have obtained feasibility report of 49 parking lots located in the twin cities of Hyderabad and Secunderabad from the Traffic Department and also from the Area Inspector concerned. The parking area in question is located on a public road earmarked for providing parking space to ease out traffic problems in the area. Based on the feasibility report, they allotted the parking lot in question to the contractor, for collecting fee from the owners of the vehicles, vide proceedings dated 31.01.2009, for a period of one year. He further stated that M/s Esvee Builders ('Builders'), who constructed the complex, vide their letter dated 26.02.2006 informed that they have lost an extent of 900 Sq. yds. from 4,040 Sq. yds. of land for widening of the road and for the formation of new road. The Builders also stated that they have handed over the setback area to the Corporation voluntarily and the same has been merged for the formation of road. As per the sanctioned plan, the Builders left an area admeasuring 22 x 17 feet, excluding the road area abutting Dwarakapuri colony. The Builders have handed over the said land to the Corporation in the year 1986, which is now being used as parking area. He contended that since the parking area belongs to the Corporation, the Petitioner has no right to seek cancellation of the leasehold granted to Smt. G. Uma, to collect parking fee from the vehicle owners. W.P. No. 21749 of 2009 The Petitioner is a resident of Andhra Colony, Manghalhat, Hyderabad and owns a house in the said colony. He states that the unofficial Respondent, who also owns land near the house of the Petitioner, started constructing a building comprising of cellar plus six floors in his land by encroaching the main road without leaving the setbacks. The balconies of his building are protruding onto the main road. On enquiry, the Petitioner came to know that the unofficial Respondent is constructing the building unauthorizedly and did not obtain any permission from the Respondent-Corporation. The Petitioner states that on 11.07.2009, he made a representation to the Respondent Corporation requesting them to take action against the unofficial Respondents, but the Respondents have not taken any action till date. Hence, he seeks directions to the Respondents- Corporation to take action against the illegal constructions being made by the unofficial Respondent. The Assistant City Planner of the Corporation, Circle-VII filed counter on behalf of GHMC stating that on 18.07.2009, the Petitioner made representation dated 11.07.2009 to take action against the unauthorized constructions being made by the unofficial Respondent. Acting on the said representation, he inspected the locality and found that the premise number given by the Petitioner in his representation is not in existence. On verification of the records it was found that the premises stands in the name of the wife of the unofficial Respondent, who obtained building permission vide permit No. 30/16, dated 11.05.2009 for construction of ground plus one upper floor, but she constructed cellar, ground plus four upper floors and also pent house, in violation of the sanctioned plan. Therefore, the Assistant City Planner issued notice dated 30.09.2009 under Section 452 of the GHMC Act to show cause as to why the unauthorized constructions should not be removed/pulled down. As she failed to submit explanation within the stipulated time, another notice dated 21.10.2009 under Section 636 of the GHMC Act was issued directing her to remove the unauthorized construction within 24 hours from its receipt, failing which, they will remove the same and recover the expenditure incurred for it from her. While so, the wife of the unofficial Respondent filed O.S. No. 4544 of 2009 on the file of the VI Junior Civil Judge, City Civil Court, Hyderabad seeking permanent injunction. She also filed an application in I.A. No. 500 of 2009 seeking temporary injunction. On contest, the same was dismissed by order dated 29.10.2009. Questioning the said order, she filed C.M.A. No. 158 of 2009 on the file of the III Additional Chief Judge, City Civil Court, Hyderabad, and obtained order of status quo. The Assistant City Planner contended that if the status quo order, passed in C.M.A. is set aside, they will remove the unauthorized constructions with the assistance of police. Hence, he prayed that the writ petition be dismissed. W.P. No. 21750 of 2009 The Petitioner is a resident of Andhra Colony, Manghalhat, Hyderabad. He states that adjacent to his house, the unofficial Respondent owns land. While so, the unofficial Respondent started constructing a building comprising of ground plus three floors and a pent house by encroaching on the main road without leaving the set backs, and the balconies of the building are protruding into the main road. The Petitioner made representation dated to the Respondents-Corporation on 11.07.2009 requesting to take action against the illegal constructions by the unofficial Respondent, but no action has been taken till date. Hence, he seeks to direct the Respondents-Corporation to take action against the unauthorized constructions being made by the unofficial Respondent. The Assistant City Planner of the Corporation filed a counter denying the contention of the Petitioner that they have not acted on his complaint. It is stated that the unofficial Respondent obtained permission for construction of stilt plus two upper floors from the Corporation vide Permit No. 164/76, dated 12.01.2009 in File No. 742/1/13/2008 but he proceeded with the construction of stilt plus ground plus three upper floors and pent house in violation of the sanctioned plan. That Respondent No.3, vide letter dated 10.08.2009, directed the unofficial Respondent to stop construction work and furnish copy of ownership and sanctioned plan for verification within three days. As the unofficial Respondent did not produce the same, he issued show cause notice dated 30.09.2009 under Section 452 of the GHMC Act directing him to show cause within seven days as to why the unauthorized construction of the building in the premises in question should not be removed. When the unofficial Respondent failed to furnish any explanation to the said show cause notice, he issued final notice dated 21.10.2009 under Section 636 of the GHMC Act, directing the unofficial Respondent to remove the unauthorized construction made in deviation of the sanctioned plan within 24 hours from its receipt failing which the Corporation will remove the unauthorized construction and recover the expenditure incurred from the unofficial Respondents. However, even before Respondent No.3 issued the above final notice, the unofficial Respondent filed suit in O.S. No. 4534 of 2009 on the file of the VI Junior Civil Judge, City Civil Court, Hyderabad, seeking permanent injunction restraining the Corporation and their men from interfering with the construction activities in the premises in question and including demolition of part of the property. In the said suit, the unofficial Respondent filed I.A. No. 495 of 2009. The Corporation having entered their appearance contested the said application by filing counter. In spite of the same, the VI Junior Civil Judge, City Civil Court, Hyderabad, granted temporary injunction order dated 30.10.2009. It is further contended that when interim injunction in the above I.A. is vacated, the Corporation will initiate further action for removal of unauthorized constructions by obtaining police protection since the area where the premise in question is situated is a sensitive area. The unofficial Respondent filed counter stating that the house of the Petitioner is separated by nearly ten houses. He denied the contention of the Petitioner that he is constructing of the building without obtaining permission. He contended that the plot in which they are making construction belongs to him and his wife and he commenced the construction after obtaining permission from the Respondents Corporation. He contended that the construction of the building is over. The Respondent Corporation issued notice dated 22.10.2009 under Section 636 of the GHMC Act. When the Respondents tried to interfere with their possession and enjoyment, they filed O.S. No. 4534 of 2009 on the file of VI Junior Civil Judge, City Civil Court, Hyderabad, and obtained injunction on 23.10.2009. According to the unofficial respondent, the Petitioner demanded money, and as his demand was not met, he came up with the present writ petition. On 12.10.2009, this Court directed appearance of the Commissioner of the Corporation to ascertain whether he framed any guidelines and time frame to deal with the complaints of illegal/unauthorized constructions. The Commissioner of the Corporation submitted that he will draft a plan constituting proper machinery to look into the complaints of illegal/unauthorized constructions and fix the responsibility on the officers who fail to act on such complaints. On 20.11.2009, the Commissioner of the Corporation filed procedural guidelines with regard to taking of action on complaints of illegal/unauthorized constructions. When the Writ Petitions were taken up for hearsay on 09.10.2009, the Commissioner of the Corporation took the stand that it is the duty of the Traffic Police to regulate the traffic, this Court suo motu impleaded the State Government and the Traffic Department as party-Respondents. On 14.10.2009 it was brought to the notice of the Court by the Commissioner of the Corporation that they have identified certain places in the city as parking lots at the request of the Traffic Police. This Court appointed four Advocate Commissioners to verify whether the said parking lots are functioning properly in easing the traffic or adding to the congestion of traffic. The Court directed them to select some places and furnish copy of the same to the Commissioner of the Corporation, so as to make a joint inspection and submit a Report. The Advocate Commissioners, having inspected several parking lots, filed their report along with photographs stating that the co-ordination and proper planning between the Corporation and Traffic Police is essential to make the roads truly useful for the citizens. They made the following suggestions: a) It is appropriate to make proper and effective Rules and Regulations to regulate the traffic, particularly in the commercial zones. b) Strict vigil by the competent authority shall be kept on the parking slot, as well as on the footpaths in front of business establishments. c) Necessary rules for effective co-ordination between the police and the Corporation. d) Appropriate penal provisions for any violation of the traffic rules. The Commissioner of the Corporation submitted his report after inspection of some parking lots. This Court upon perusing the same felt that there is traffic congestion due to lack of co-ordination between the Traffic Police and officials of the Corporation and by an Order dated 20.11.2009, suo motu impleaded the Joint Commissioner of Police, Traffic, Hyderabad City as party-Respondent. On 14.06.2010, the learned Government Pleader for Home submitted that the Principal Secretary to the Government in the Home Department will conduct a meeting of the officials of the Traffic Department and the Corporation, and after examining the report of the Advocate Commissioners will come up with concrete guidelines for curbing the traffic congestion in the city. On 13.07.2010, the Government Pleader for Home placed letter dated 09.07.2010 addressed to him by the Principal Secretary to the Government with regard to the meeting conducted by him to look into any lack of co-ordination between the Corporation and Traffic Police regarding identification and allotment of parking slots in Hyderabad. As the minutes of the meeting were incomplete, this Court directed the Government to file detailed counter-affidavit indicating the required details. The Advocate Commissioners on 06.08.2010 reported that their inspection revealed that still there are illegal parking places and collection of parking fee is going on. On 09.09.2010, the learned Standing Counsel for the Corporation, submitted that commercial activities, such as schools, colleges, hospital and hotels, in residential zone is resulting in traffic congestion and that the Government has permitted such commercial activities in the residential zone by issuing G.Os. In view of this stand taken by the Standing Counsel for the Corporation, this Court suo motu impleaded Hyderabad Metro Development Authority as party-Respondent. Pursuant to their suo motu impleadment, the Respondents, namely, the Government, Traffic Department and Hyderabad Metro Development Authority filed their detailed counters. The Deputy Secretary to the Government in the Municipal Administration Department, filed counter stating that the Development Plan for the erstwhile Municipal Corporation of Hyderabad Area (HMDA Core area) was sanctioned by the Government vide G.O. Ms. No. 414, M.A., dated 27.09.1975. Hyderabad Metro Development Authority (hereinafter referred to as 'the HMDA'), previously called as Hyderabad Urban Development Authority, was constituted under the Hyderabad Metro Development Authority Act, 2008 (hereinafter referred to as 'the HMDA Act'), by the State Legislature. The HMDA under the Hyderabad Metro Development Authority Act is required to prepare Master Plan and Zoning Regulations in respect of the area falling within its jurisdiction. Zonal Development Plans for zones, prepared by HMDA were approved by the Government from time to time from 1980 to 1995. The said zonal Development Plans give the details of land uses. The Zoning Regulations for the erstwhile Hyderabad Municipal Corporation, were approved by the Government or AP vide G.O. Ms. No. 916, MA, dated 11.08.1981. Under the said Zoning Regulations, the activities permissible in each zone are specified. Subsequently, certain roads in the core area of Municipal Corporation of Hyderabad were declared as commercial roads vide G.O. Ms. No. 766, dated 18.10.2007 was issued by the Government in exercise of the power conferred on them under Section 12(2)(3) of the A.P. Urban Areas Development Act, 1975 read with Rule 13(a) of the Urban Development Authority (Hyderabad) Rules, 1975. The Government categorized and notified commercial roads into A, B and C categories, for the purpose of allowing commercial activities/buildings by levying impact fee thereon. Activities permitted under category 'A' roads include - (i) multiplexes, (ii) shopping malls, (iii) cinema theatres, (iv) wholesale trade, and (v) all other commercial uses permitted under category 'B' roads. Under category 'B' roads, the activities permitted are (i) all retail shopping, (ii) all service establishments, petrol filling stations and motor repair garages, (iii) shopping complexes, (iv) hotels, (v) hospitals, (vi) function halls, and (vii) all commercial activities permissible in category 'C' roads. The activities permissible in category 'C' roads are (i) office complexes, (ii) Information Technology enabling services complexes, (iii) petrol filling stations, (iv) restaurants and eateries, fast food joints and (v) convenience shopping activities. It is further stated that the Master Plan was modified and approved by the Government for the peripheral corporation area pursuant to merger of municipalities into the Corporation vide G.O. Ms. No. 288, dated 03.04.2008, and the land use Zoning Regulations, have been classified as (i) residential zone, (ii) commercial zone, (iii) manufacturing zone, (iv) public and semi-public zone, (v) multiple use zone, (vi) public utilities, (vii) open space zone, (viii) conservation zone, (ix) forests, (x) water bodies, (xi) special reservations (heritage buildings and areas, military lands, others) and (xii) transportation and communication zone (roads, railways, airports, bus depots and truck terminals). It is further stated that the Development Plan of HMDA was revised in2010 and each category of zone and the permitted uses have been declared vide G.O. Ms. No. 363, dated 21.08.2010. As per the said Development Plan small commercial activities such as banks, shops, clinics, educational institutions etc., are permissible in residential areas are permissible in residential zones. It is further stated that the Regulations were prepared by the Government in exercise of the power conferred on them under the HMDA Act and the Rules made thereunder. The Government is empowered to frame Regulations and modify the Master Plans based on the recommendations of the Development Authority. As per the Master Plan, prepared by HMDA, as approved by the Government, the local authority, namely the Corporation, has to regulate and to take steps for violations thereof. The Corporation is the local authority to grant layout, approvals, building permission (residential/commercial etc.) and take other necessary steps as per the Zone Regulations and master plan prepared for the area. It is further stated that certain commercial activities are permissible in residential areas subject to certain restrictions. Therefore, being the local authority the Corporation has to regulate keeping in view the restrictions imposed under the Master Plan and zoning regulations and in tune with the GHMC Act. It is contended that the running of schools, colleges, hospitals etc. is permissible in residential zones as per both the Zoning Regulations of 1981 and the latest zoning Regulations of revised Development Plan. However, certain roads are declared as commercial roads and the plots abutting the said roads can deal in commercial activities as are notified therein. On behalf of HMDA, its Director (Planning) filed counters in all the four writ petitions, making common averments. He denied the submission made by the Standing Counsel for the Corporation that the traffic problem is being caused on the road because the Government has permitted commercial activities such as running of schools, colleges, hospitals and hotels in residential zone. He relied on the recommendations of HMDA and contended that if any person is making use of a premises or building for a purpose other than for which it was earmarked, the Corporation should take action, and the Corporation is the sole competent body to take action against the owners of such premises. He stated that the Hyderabad Urban Development Authority was constituted under the provisions of A.P. Urban Areas Development Act, 1975. The Government of Andhra Pradesh, in exercise of the power conferred on them by Section 59(1) thereof, issued G.O. Ms. No. 916, M.A. Department, dated 11.08.1981, A.P. Urban Areas (Development) Act, 1975, framing Hyderabad Urban Development Authority Zoning Regulations, 1981, earmarking the uses of the lands. The Government of Andhra Pradesh enacted the Hyderabad Metropolitan Development Authority Act, 2008, which came into force w.e.f. 24.08.2008. Upon its coming into force, the Government issued G.O. Ms. No. 572, MA & UD Department, dated 25.08.2008, dissolving Hyderabad Urban Development Authority. It is contended that as per Section 23(2) of the HMDA Act the local authority concerned shall take immediate necessary steps where a development/construction is undertaken by an owner, builder or developer fails to take approval or violates the metropolitan development plan and investment plan, or an area development plan, or development scheme, or any rule, regulation, order. It is contended that the Corporation being the local authority has to take action against the unauthorized construction or misuse of premises by any individual. As per the provisions of the HMDA Act, a person can make application to the Government or HMDA for change of land use in the master plan. If the area falls within its jurisdiction the Government calls for remarks from HMDA as well as the Corporation as and when application is received. It is further stated that HMDA recommends to the Government, for consideration or rejection of application for change of land use after satisfying itself with the ownership and technical aspects, such as site location, planning parameters of the master plan and zoning regulations. If proposal is agreed, the Government will issue a draft memo calling for suggestions and objections from the general public within 15 days of publication of the notification in the A.P. Gazette by the Government and publication in two largely circulated newspapers by HMDA. After considering the objections/ suggestions, if any, received within the stipulated time, the Government confirms the draft memo and issues G.O. confirming the change of land use, which is finally notified by HMDA in two local newspapers and also by the Government in the A.P. Gazette. It is contended that no person is entitled to use the premises for purpose other than permitted in the master plan and statutory zoning regulations. The problems of traffic being a traffic management issue, it is contended that it is the responsibility of the Corporation, Unified Metropolitan Transportation Authority and Police Development to take necessary steps and action. The Additional Commissioner of Police (Traffic), filed counter stating that the Corporation in their letter dated 20.02.2008 requested the Traffic Branch to examine 114 proposed parking lots and to inform the status of feasibility. Of the 114 proposed parking lots, the Traffic Branch recommended 49 parking lots including the Model House, Panjagutta, at Sl. No. 21, vide their letter dated 04.03.2008. It is contended that the Corporation proposed to use both sides of Model House for parking purpose, but after inspecting the site, the Traffic Branch recommended the parking feasibility of one side i.e. only towards Model House. The Traffic Branch has no knowledge about the ownership of the open land. It is contended that most of the parking lots notified by the Corporation were not recommended by the Traffic Branch. In majority of the cases, the Corporation has taken independent decision and notified them for parking purpose. It is stated that the Government having recognized the need to enhance parking provisions, issued Revised Building Rules vide G.O. Ms. No. 86, M.A. & U.D.(M) Dept., dated 03.03.2006 wherein provision has been made to insist sufficient parking space. As required, in all non-residential complexes, like hotels, restaurants, cinema theatres, star hotels, lodges, business buildings, commercial buildings, institutional buildings like hospitals, educational buildings like schools and colleges and multi-storied buildings/complexes etc., and other residential complexes provision shall be made for parking space. NOC is not issued to any establishment if they fail to fulfill the same. It is contended that the Traffic branch, Hyderabad City, is strictly following the parking provisions laid down in G.O. Ms. No. 486, MA & UD, dated 07.07.2007, G.O. Ms. No. 86, MA & UD, dated 03.03.2006, G.O. Ms. No. 46, Home (General-A) Department, dated 10.03.2006, G.O. Ms. No. 41, Education (SE-PS-I) Dept., dated 11.05.2006, G.O. Ms. No. 88, School Education (SE PSI) Dept., dated 07.07.2008 and G.O. Ms. No. 423, MA & UD (M1) Dept. dated 31.07.1998. It is stated that the main responsibility of the Traffic Police is to regulate the traffic, to enforce the Motor Vehicles Act, City Police Act and to educate the road users, prevent danger and inconvenience to the general public and to ensure free flow of traffic. On 03.02.2011, upon perusal of the report submitted by the Advocate Commissioners, this Court prima facie felt that traffic congestion was being caused on account of negligence on the part of traffic police in ensuring that the owners park their vehicles in the areas earmarked for parking. Thereafter, on 04.02.2011, the learned Advocate General submitted that he will file comprehensive affidavits/reports indicating the steps taken by the Government in the matter of (a) Prevention of illegal constructions on the roads and road margins; (b) Illegal parking in front of buildings and other non-permitted places and; (c) Permissions for conversion of residential buildings/roads in violation of the Master Plan. On 15.07.2011, the Corporation filed report on action taken. But this Court, upon perusal of the same, registered its dissatisfaction and called upon them to file detailed affidavit meeting the allegations made in the affidavits filed in support of the writ petitions, particularly with reference to commercial buildings constructed without leaving parking space, encroachments made on footpaths, conversion of residential buildings into commercial use, constructions made in the cellar in deviation to the sanctioned plan etc. The Court also directed them to file report as to what action they have taken on the report of the Advocate Commissioners. Based on the report of the Advocate Commissioners, and the suggestions made by them, the Commissioner of the Corporation, issued proceedings dated 01.07.2010 framing additional guidelines, which are also placed on record. The Commissioner of the Corporation also filed affidavit dated 03.10.2010 bringing to the notice of the Court that people who are making illegal constructions in violation of the provisions of the GHMC Act and Building Regulations are approaching the Civil Courts. In view of the status quo orders/injunction orders, passed by the civil Courts, they are unable to exercise their power for removal of the illegal structures to enforce the notices issued by them under Sections 452 and 636 of the GHMC Act. He further stated that in the guise of status quo orders/injunction orders, people complete the constructions by threatening the authorities of the Corporation with initiation of contempt proceedings if they take any steps to stop their illegal construction activity. He has also brought this fact to the notice of a Division Bench of this Court in W.A. No.2130 of 2005. Upon their furnishing the list of cases pending wherein status quo orders have been passed, the Division Bench of this Court was pleased to pass orders dated 21.12.2005 and 27.07.2006. He contended that in spite of the said order, the civil courts are passing status quo orders in the suits filed in respect of illegal constructions after action is initiated by the Corporation without clarifying whether it does not prevent the Corporation to stop the continuation of illegal construction. He further contended that there are some sensitive areas in Hyderabad city where the authorities of the Corporation require police protection to enforce the action initiated under Sections 452 and 636 of the GHMC Act to demolish illegal structures in such area. It will be difficult to carry out demolition of illegal structures since people who indulge in illegal constructions mobilize anti- social elements to attack on the demolition staff. Therefore, the authorities of the Corporation will have to address letters to the police station concerned seeking police protection and wait till protection is provided to carry out demolitions. This causes delay in carrying out the demolition of illegal constructions. Apart from the above, he further contended that there is delay in demolition of unauthorized construction due to insufficiency in number of staff in the Corporation. In spite of this, the Corporation is giving utmost importance to initiate action to curb the illegal activity and remove the illegal structures in public interest. The Corporation requested the Government to permit the Corporation to recruit the staff. As per the directions of this Court, the Principal Secretary to the Government in the Home Department conducted meeting to look into lack of co-ordination between the officials of the Corporation and the Traffic Department and vide his letter dated 09.07.2010, communicated to the Government Pleader for Home, the following points that emerged for discussion: 1. None of the 33 parking lots which have been not recommended by city police as per letter dated 27.01.2010 have been either auctioned or allotted. They are not being used as authorized parking lots. These 33 parking lots include item No. 55, which is subject matter of W.P. No. 21354 of 2009. 2. With reference to the counter filed by the Additional Commissioner, Traffic in W.P. No. 21354 of 2009 in February, 2010, it is to mention that para 2 on page 2 is only talking about the position existing as per the earlier allotment made for the year 2009 and 2010 i.e. upto 31.01.2010 only and not about the present position. 3. The Corporation has made the present allotment/auction for the year 2010 to 2011 i.e. upto end of June 2011 strictly as per the recommendations of the traffic police in the letter dated 27.01.2010 and after conducting a joint meeting of officials of GHMC and traffic police. 4. It would therefore be seen that the allotment/auction made for the present period i.e. upto June, 2011 has been done with complete co-ordination between the Corporation and the traffic police. 5. (i) As regards the statement of the Additional Commissioner, Traffic, Hyderabad in the counter dated 12.02.2010 at the first para on page 3, stating that the Corporation has taken independent decision and notified lots for parking, that must be relating to the period before the present allotments/auction; (ii) On this aspect the Corporation has promised to furnish information whether any of the 22 parking lots noted as not feasible by traffic police vide Lr. Dated 04.03.2008 in Hyderabad City area were in fact allotted or auctioned during the earlier period. After receipt of that information a further report will be sent. Thereafter, the Commissioner of the Corporation filed affidavit detailing as to what action they have initiated to prevent the illegal parking on the road margins. The same is placed on record. The Advocate Commissioners also filed their report dated 02.02.2011 as regards the inspection made by them with regard to traffic congestion at several places. Thereafter, the learned Advocate General also filed his report dated 21.02.2011, indicating the steps being taken by the Traffic Department to deal with the illegal parking, dangerous parking, bus bay parking, encroachments and towing cases etc. Heard the learned counsel for the Petitioners, the learned Government Pleaders for Home and Municipal Administration, the learned Standing Counsel for the Corporation, the learned Standing Counsel for HMDA and the learned Advocate Commissioners. Though the relief claimed in the four writ petitions technically speaking has almost become infructuous, but since the issues raised are of public importance and crop up every day before this Court and to ensure solution to such issues, the counsel appearing for the parties have advanced their arguments and this Court also, as noticed above, had impleaded the Departments concerned which are responsible for protection of the rights of citizens heard their arguments. From the pleadings and the rival stands taken by the parties and considering the reports filed by the authorities concerned and the Advocate Commissioners, as noticed above, the following issues cause - I. Illegal Construction II. Obstruction on Public Road I. Illegal Construction Illegal Constructions violate the principle of Rule of Law. It shows scant respect for the legal norms by citizens and failure of the state to enforce the law. The Supreme Court of India in a series of judgments has dealt with the problem of illegal constructions and gave directions for their demolition. In the said cases, the Supreme Court has shown no tolerance for illegal construction. [K. Ramadas Shenoy v. Chief Officers, Town Municipal Council1; Virender Gaur v. State of Haryana2; Pleasant Stay Hotel v. Palani Hills Conservation Council3; Cantonment Board, Jabalpur v. S.N. Awasthi4; Pratibha Coop. Housing Society Ltd. v. State of Maharashtra5; G.N. Khajuria (Dr) v. Delhi Development Authority6; Manju Bhatia v. New Delhi Municipal Council7; M.I. Builders Pvt. Ltd. v. Radhey Shyam Sahu8; Friends Colony Development Committee v. State of Orissa9; Shanti Sports Club v. Union of India10 and Priyanka Estates International Pvt. Ltd. v. State of Assam11.] In K. Ramadas Shenoy v. Chief Officers, Town Municipal Council, the resolution passed by the Municipal Committee authorizing construction of a cinema theatre was challenged on the ground that the site was earmarked for the construction of Kalyan Mantap-cum-Lecture Hall and the same could not have been used for any other purpose. The High Court held that the cinema theatre could not be constructed at the disputed site but declined to quash the resolution of the Municipal Committee on the ground that the theatre owner had spent huge amount. While setting aside the High Court's order, the Supreme Court observed: "An illegal construction of a cinema building materially affects the right to or enjoyment of the property by persons residing in the residential area. The Municipal Authorities owe a duty and obligation under the statute to see that the residential area is not spoilt by unauthorized construction. The Scheme is for the benefit of the residents of the locality. The Municipality acts in aid of the Scheme. The rights of the residents in the area are invaded by an illegal construction of a cinema building. It has to be remembered that a scheme in a residential area means planned orderliness in accordance with the requirements of the residents. If the scheme is nullified by arbitrary acts in excess and derogation of the powers of the Municipality the courts will quash orders passed by Municipalities in such cases. The Court enforces the performance of statutory duty by public bodies as obligation to ratepayers who have a legal right to demand compliance by a local authority with its duty to observe statutory rights alone. The Scheme here is for the benefit of the public. There is special interest in the performance of the duty. All the residents in the area have their personal interest in the performance of the duty. The special and substantial interest of the residents in the area is injured by the illegal construction." In Pratibha Coop. Housing Society Ltd. v. State of Maharashtra, the Supreme Court approved the order passed by the Bombay Municipal Corporation for demolition of the illegally constructed floors of the building and observed: "Before parting with the case we would like to observe that this case should be a pointer to all the builders that making of unauthorized constructions never pays and is against the interest of the society at large. The rules, regulations and bye-laws are made by the Corporations or development authorities taking in view the larger public interest of the society and it is the bounden duty of the citizens to obey and follow such rules which are made for their own benefits." In Friends Colony Development Committee v. State of Orissa, the Supreme Court noted that large number of illegal and unauthorized constructions were being raised in the city of Cuttack and made the following significant observations: "... Builders violate with impunity the sanctioned building plans and indulge in deviations much to the prejudice of the planned development of the city and at the peril of the occupants of the premises constructed or of the inhabitants of the city at large. Serious threat is posed to ecology and environment and, at the same time, the infrastructure consisting of water supply, sewerage and traffic movement facilities suffers unbearable burden and is often thrown out of gear. Unwary purchasers in search of roof over their heads and purchasing flats/apartments from builders, find themselves having fallen prey and become victims to the designs of unscrupulous builders. The builder conveniently walks away having pocketed the money leaving behind the unfortunate occupants to face the music in the event of unauthorized constructions being detected or exposed and threatened with demolition. Though the local authorities have the staff consisting of engineers and inspectors whose duty is to keep a watch on building activities and to promptly stop the illegal constructions or deviations coming up, they often fail in discharging their duty. Either they don't act or do not act promptly or do connive at such activities apparently for illegitimate considerations. If such activities are to stop some stringent actions are required to be taken by ruthlessly demolishing the illegal constructions and non-compoundable deviations. The unwary purchasers who shall be the sufferers must be adequately compensated by the builder. The arms of the law must stretch to catch hold of such unscrupulous builders..." In Shanti Sports Club v. Union of India, the Supreme Court approved the order of the Delhi High Court, which had declared the construction of sports complex by the appellant on the land acquired for planned development of Delhi to be illegal and observed: "In the last four decades, almost all cities, big or small, have seen unplanned growth. In the 21st century, the menace of illegal and unauthorized constructions and encroachments has acquired monstrous proportions and everyone has been paying heavy price for the same. Economically affluent people and those having support of the political and executive apparatus of the State have constructed buildings, commercial complexes, multiplexes, malls, etc. in blatant violation of the municipal and town planning laws, master plans, zonal development plans and even the sanctioned building plans. In most of the cases of illegal or unauthorized constructions, the officers of the municipal and other regulatory bodies turn blind eye either due to the influence of higher functionaries of the State or other extraneous reasons. Those who construct buildings in violation of the relevant statutory provisions, master plan, etc. and those who directly or indirectly abet such violations are totally unmindful of the grave consequences of their actions and/or omissions on the present as well as future generations of the country which will be forced to live in unplanned cities and urban areas. The people belonging to this class do not realize that the constructions made in violation of the relevant laws, master plan or zonal development plan or sanctioned building plan or the building is used for a purpose other than the one specified in the relevant statute or the master plan, etc., such constructions put unbearable burden on the public facilities/amenities like water, electricity, sewerage, etc. apart from creating chaos on the roads. The pollution caused due to traffic congestion affects the health of the road users. The pedestrians and people belonging to weaker sections of the society, who cannot afford the luxury of air-conditioned cars, are the worst victims of pollution. They suffer from skin diseases of different types, asthma, allergies and even more dreaded diseases like cancer. It can only be a matter of imagination how much the Government has to spend on the treatment of such persons and also for controlling pollution and adverse impact on the environment due to traffic congestion on the roads and chaotic conditions created due to illegal and unauthorized constructions. This Court has, from time to time, taken cognizance of buildings constructed in violation of municipal and other laws and emphasized that no compromise should be made with the town planning scheme and no relief should be given to the violator of the town planning scheme, etc. on the ground that he has spent substantial amount on construction of the buildings, etc. Unfortunately, despite repeated judgments by this Court and the High Courts, the builders and other affluent people engaged in the construction activities, who have, over the years shown scant respect for regulatory mechanism envisaged in the municipal and other similar laws, as also the master plans, zonal development plans, sanctioned plans, etc., have received encouragement and support from the State apparatus. As and when the Courts have passed orders or the officers of local and other bodies have taken action for ensuring rigorous compliance with laws relating to planned development of the cities and urban areas and issued directions for demolition of the illegal/unauthorized constructions, those in power have come forward to protect the wrongdoers either by issuing administrative orders or enacting laws for regularization of illegal and unauthorized constructions in the name of compassion and hardship. Such actions have done irreparable harm to the concept of planned development of the cities and urban areas. It is high time that the executive and political apparatus of the State take serious view of the menace of illegal and unauthorized constructions and stop their support to the lobbies of affluent class of builders and others, else even the rural areas of the country will soon witness similar chaotic conditions." In Priyanka Estates International Pvt. Ltd. v. State of Assam, the Supreme Court refused to order regularization of the illegal construction raised by the appellant and observed: "It is a matter of common knowledge that illegal and unauthorized constructions beyond the sanctioned plans are on rise, may be due to paucity of land in big cities. Such activities are required to be dealt with by firm hands otherwise builders/colonizers would continue to build or construct beyond the sanctioned and approved plans and would still go scot-free. Ultimately, it is the flat owners who fall prey to such activities as the ultimate desire of a common man is to have a shelter of his own. Such unlawful constructions are definitely against the public interest and hazardous to the safety of occupiers and residents of multi-storied buildings. To some extent both parties can be said to be equally responsible for this. Still the greater loss would be of those flat owners whose flats are to be demolished as compared to the builder." From the above judgments the following principles emerge: (1) There should be no tolerance for illegal constructions. An illegal construction cannot be justified on the ground that construction has been completed or substantial investment already has gone into the said construction. (2) If illegal constructions are allowed it will send a wrong message to other citizens and it is a punishment for a law abiding citizen who carry out construction in accordance with law. (3) It is the duty of the Municipal Corporation to strictly enforce the law and take action against illegal constructions. If the Municipality fails to take action against illegal construction, the court can direct the corporation enforcement of its duties. (4) It is the duty of the local municipality to take strict action against buildings, which are constructed in violation of law. If they fail to do so, it does not in any way justify the illegal construction, which can be demolished at any point of time either at the instance of the Municipality or the Court Order. (5) If an innocent purchaser purchases a building unaware of the illegal construction, he is entitled to compensation from the builder and the court can direct him to do so. As the Supreme Court observed in Friends Colony Development Committee v. State of Orissa, (2004) 8 SCC 733: "The arms of the law must stretch to catch hold of such unscrupulous builders". II. Obstruction on Public Roads and foot paths The issue of obstruction on public roads and foot paths has also come up repeatedly before the Supreme Court. In one of the first cases, Chief Justice Chandrachud of the Supreme Court in Olga Tellis v. Bombay Municipal Corporation12 observed as follows: In the first place, footpaths or pavements are public properties which are intended to serve the convenience of the general public. They are not laid for private use and indeed, their use for a private purpose frustrates the very object for which they are carved out from portions of public streets. The main reason for laying out pavements is to ensure that the pedestrians are able to go about their daily affairs with a reasonable measure of safety and security. That facility, which has matured into a right of the pedestrians, cannot be set at naught by allowing encroachments to be made on the pavements. There is no substance in the argument advanced on behalf of the petitioners that the claim of the pavement dwellers to put up constructions on pavements and that of the pedestrians to make use of the pavements for passing and re-passing, are competing claims and that the former should be preferred to the latter. No one has the right to make use of a public property for a private purpose without the requisite authorization and, therefore, it is erroneous to contend that the pavement dwellers have the right to encroach upon pavement by constructing dwellings thereon. Public streets, of which pavements form a part, are primarily dedicated for the purpose of passage and, even the pedestrians have but the limited right of using pavements for the purpose of passing and re-passing. So long as a person does not transgress the limited purpose for which pavements are made, his use thereof is legitimate and lawful. But, if a person puts any public property to a use for which it is not intended and is not intended and is not authorized so to use it, he becomes a trespasser. Similarly, in Ahmedabad Municipal Corporation v. Nawab Khan Gulab Khan13, the Supreme Court held as follows: "Every Municipal Corporation has statutory obligation to provide free flow of traffic and pedestrians right to pass and re-pass freely and safely; as its concomitance, the Corporation/Municipality have statutory duty to have the encroachments removed. It would, therefore, be inexpedient to give any direction not to remove, or to allow the encroachment on the pavements or footpaths, which is a constant source of unhygienic ecology, traffic hazards and risk prone to lives of the pedestrians. It would, therefore, be necessary to permit the Corporation to exercise the statutory powers to prevent encroachment of the pavements/footpaths and to prevent construction thereon. As held earlier, the Corporation should always be vigilant and should not allow encroachments of the pavements and footpaths. As soon as they notice any encroachments they should forthwith take steps to have them removed and would not allowed them to settle down for a long time. (emphasis supplied) The Supreme Court again in Rakesh Sharma v. State of Madhya Pradesh14, observed as follows: "The materials placed by the Municipal Corporation clearly show that Gandhi Market which is primarily a cloth market was established in the year 1952 is now in a very haphazard condition causing difficulty in the movement of public as well as of vehicles. It was highlighted that in the daytime as well as in the evening busy time, it takes hours together for the vehicles to pass from that area. Photographs were also shown to us. It is impossible for the public to even walk on the street. The shopkeepers are dumping their products upon the street, which is not permissible. The public is prevented from using the footpath/pavement meant for them. In such circumstances, a decision was taken to construct a multi-level parking-cum-commercial complex. In this process of construction, it was planned to shift temporarily the present shopkeepers to some other nearby places. In Sudhir Madan v. Municipal Corporation of Delhi15, the Supreme Court held as follows: "We do not wish to give the authorities an impression that the streets, lanes, footpaths and the parks exist only for hawkers. The reality is that they exist for the benefit of the ordinary people living in those localities. The concept of starting hawking business early in the morning or late in the evening may also have to be reconsidered in the light of recent developments in the city, particularly with the advent of Metro and progress made in widening roads for use by the ordinary citizens. We cannot lose sight of the fact that street hawkers have also increased in number. All these concerns are important and the authority framing the scheme must keep these considerations in mind". A Division Bench of the Madras High Court was confronted with issue of allotment of public parking being encroached by private persons by employing services of private security agencies in K. Krishnamani v. Corporation of Chennai16. Upon perusal of the municipal rules, the High Court held that collection of lumpsum licence fee from private respondents and exclusively earmarking the notified parking space for a private person is illegal. The aforesaid observations clearly show that the public roads and footpaths can be used only for public purpose and cannot be used for encroachments or any private purpose. In view of the law laid down by the Hon'ble Supreme Court which are directly applicable to the facts presented before the Court, this Court issues the following directions: 1. The Respondent Corporation should ensure that there is no deviation from the Master Plan or sanctioned plan under any circumstances. If there is any deviation, the GHMC should take immediate action to enforce the same. 2. The Respondent Corporation should periodically assess whether existing buildings are in accordance with the Master Plan. The concerned officials should be held accountable if there is any violation of the Master Plan. 3. With respect to existing construction, which is illegal and is in deviation of Master Plan, the GHMC should take action to demolish the same. 4. If there is any violation of the Master Plan or the GHMC sanctioned plan, GHMC should immediately inform the AP TRANSCO and HMWSSB to take appropriate action. 5. All public roads should be used for the movement of traffic and cannot be used for allotment to private agencies for the purpose of parking. 6. GHMC should notify designated parking zones in various places for the purpose of parking. GHMC should construct multi-layered parking zones at various places throughout the city. 7. GHMC should ensure that footpaths are used only for pedestrians and bus stand. Under no circumstances should the footpaths be used for hawking or any other material. 8. All commercial establishments in the city should have their own parking facility and cannot use the road for the purpose of parking. GHMC should not give permission to any new commercial establishment unless, they provide sufficient parking space for users of the said premises. With respect to the existing establishments, GHMC should serve notice on all commercial establishments within the city, requiring them to create appropriate parking space within six months. If the said establishments fail to do so, GHMC should take appropriate action for cancellation of their licence under the A.P. Shops and Establishments Act. We direct the Commissioner, GHMC to implement this Order within six months from the date of receipt of the Order. Accordingly, the writ petitions are disposed of. No costs. ________________ N.V. RAMANA, J.
Dated: 05.08.2011