Andhra HC (Pre-Telangana)
Mohammed Ahmed Ali vs The State Of Telangana, Hyderabad And ... on 16 October, 2014
Author: M.S. Ramachandra Rao
Bench: M.S. Ramachandra Rao
THE HONBLE SRI JUSTICE M.S. RAMACHANDRA RAO
W.P.No.24427 of 2014
16-10-2014
Mohammed Ahmed Ali.Petitioner.
The State of Telangana, Hyderabad and others...Respondents.
Counsel for the petitioner:Sri K.Rathanga Pani Reddy
Counsel for the 1st respondent : Learned Government Pleader for
Municipal Administration (T)
Standing Counsel for the respondents 2, 4 and 5 : Smt.A.Deepthi
Counsel for the respondent No.3 : Sri M.Dananjaya Reddy
<GIST:
>HEAD NOTE:
?Cases referred
(1995)1 SCC 47
2 (2007) 8 SCC 705
3 (2007) 8 SCC 748
THE HON'BLE SRI JUSTICE M.S.RAMACHANDRA RAO
W.P.No.24427 of 2014
ORDER:
This Writ Petition is filed by the petitioner questioning the proceeding No.G4/BP/351/W.No.12/CSC/88684/TPS/C- 3/GHMC/ 2013 dt.02-12-2013 of the 2nd respondent rejecting application submitted by petitioner for construction of a residential building consisting of stilt+4 upper floors on plot No.5/1 and 5/2 in Sy. Nos.91, 92, 93 and 96, Dhatunagar, situated at Karmanghat (v), Saroornagar (M), Ranga Reddy District on the ground that the above site falls under 200 feet proposed road as per the Revised Master Plan 2008.
2. The petitioner has purchased the above property under a registered sale deed being D.No.10847/2012 dt.29.08.2012. These plots form part of Ward No.8, Block No.9, Dhatunagar, Karmanghat and are said to be Hyderabad Urban Development Authority approved plots vide proceedings No.19/MP2/HUDA/2004 dt.02.04.2004. The petitioner alleges that these plots form part of the land abutting to plot No.5 which is a HUDA layout.
3. The petitioner had submitted an application dt.07.11.2013 to the 4th respondent seeking permission for construction of a residential building. The same was rejected by the 4th respondent under a Rejection Intimation referred to above on 02.12.2013 stating inspected the site and found that the above applied site falls under 200 feet proposed road as per the Revised Master Plan 2008.
4. The petitioner contends that this order is contrary to law and violates his constitutional and legal rights guaranteed under the Constitution of India. According to the petitioner, the layout in which these plots are located is a HUDA approved layout in 2004 itself which has become part of Ward No.8, GHMC, and his right over the property cannot be taken away on the ground that it is included in the Master Plan. The petitioner contends that if the respondents require his land/plots for any public purpose such as the proposed road, they have a statutory obligation to acquire the same by paying compensation; and without doing so, they cannot prevent him from enjoying his property or reject his application for building permission. The petitioner also alleges that as on date the respondents have not taken any steps to acquire his land.
5. The respondent nos.2, 4, and 5 have filed a counter- affidavit asking the petitioner to prove his title to the property. It is also contended that vide G.O.Ms.No.288, Municipal Administration dt.03.04.2008, the Government had approved a Revised Master Plan comprising of 18 Zonal segments covering the non-MCH area of HUDA (excluding the erstwhile MCH area and the newly extended area of HUDA) along with land use zoning, building and layout regulations; that in the said GO, the petitioners property is getting affected under proposed 200 feet wide road; and that under Section 18(2) of the Hyderabad Metropolitan Development Authority Act, 2008, no person shall use or be permitted to use any land or carry out any development in that area unless the development is in conformity with the plan. It is also stated that as and when the 2nd respondent-Corporation takes up the road widening work on the subject site, necessary compensation would be paid to the petitioner invoking provisions under Section 146 and 147 of the Greater Hyderabad Municipal Corporation Act, 1955 (for short, the Act).
6. The counsel for the petitioner and the Standing Counsel for respondent nos.2, 4 and 5 reiterated the stand of their respective clients. The Standing Counsel for 3rd respondent adopted the stand taken in the counter-affidavit of respondent nos.2, 4 and 5.
7. As can be seen from the above pleadings, respondents contention is that since the subject premises belonging to the petitioner is covered by Master Plan issued vide G.O.Ms.No.288, Municipal Administration dt.03.04.2008 and earmarked for 200 feet residential use zone, the petitioner is not entitled to be granted any permission for making constructions therein.
9. The said Notification was issued in exercise of the powers conferred by sub Section (2) of Section 12 of the A.P..Urban Areas (Development) Act, 1975 by the erstwhile Govt.of Andhra Pradesh.
10. The said statute was enacted by the then Andhra Pradesh State Legislature for constitution of Urban Development Authorities including the Hyderabad Urban Development Authority for the purposes of planning, coordination, supervising/promoting and securing the planned development of the Hyderabad Development area as notified under Sec.13(1) of the Act. The said Legislation therefore is in the nature of the regulatory statute which restricts the right of an owner of property to use and develop his land in larger public interest. It therefore requires strict construction and such restrictions must be reasonable restrictions. In any event it is not an expropriatory statute.
11. The two competing interests i.e. the interest of the State vis--vis the general public to have better living conditions and the right of property of an individual, though not a fundamental right, but which is still a constitutional and human right, need to be balanced. Therefore enforcement of the regulations framed under Section 12 of the Act should be done in such a way that a citizen is not deprived of his property save in accordance with law. If a zoning classification imposes unreasonable restrictions, it cannot be sustained.
12. In Pt. Chet Ram Vashist v. Municipal Corpn. Of Delhi , the Supreme Court had to consider whether the Municipal Corporation of Delhi, in the absence of any provision in the Delhi Municipal Corporation Act, 1957, was entitled to sanction a plan for building activities by imposing a condition that the open space for parks and schools be transferred to it free of cost. Section 313 of the said Act entitled the Standing Committee of the said Corporation to accord sanction to a layout plan on such conditions as it may think fit. The Supreme Court held that the expression such conditions has to be understood so as to advance the objective of the provision and the purpose for which it has been enacted. It held that the Corporation has been given the right to examine that the layout plan is not contrary to any provision of the Act or the Rules framed by it and therefore it may direct a person seeking a layout plan to leave certain open space, or to adhere to the length and width of the rooms of particular dimensions, or it may direct him to provide certain amenities and facilities to those who purchase land or buildings in its colony. It held that such power cannot be construed to mean that in exercise of placing restriction or imposing conditions before sanctioning a layout plan, it can also claim that it shall be sanctioned only if the owner surrenders a portion of the land and transfers it in favour of the Corporation free of cost. It held that this would be contrary to the language used in the Section and violative of civil rights which vest in every owner to hold his land and transfer it in accordance with law. It therefore held that the resolution passed by the Corporation directing the appellant to transfer the space reserved for tube-wells, school and park in its favour free of cost was depriving the owner of its property and vesting it in the Corporation against the law. It rejected the finding of the High Court that such a condition did not amount to transfer of ownership but it was only a transfer of the right of management. It observed:
6 . Reserving any site for any street, open space, park, school etc. in a layout plan is normally a public purpose as it is inherent in such reservation that it shall be used by the public in general . The effect of such reservation is that the owner ceases to be a legal owner of the land in dispute and he holds the land for the benefit of the society or the public in general . It may result in creating an obligation in nature of trust and may preclude the owner from transferring or selling his interest in it. It may be true as held by the High Court that the interest which is left in the owner is a residuary interest which may be nothing more than a right to hold this land in trust for the specific purpose specified by the coloniser in the sanctioned layout pl an. But the question is, does it entitle the Corporation to claim that the land so specified should be transferred to the authority free of cost. That is not made out from any provision in the Act or on any principle of law. The Corporation by virtue of the land specified as open space may get a right as a custody an of public interest to manage it in the interest of the society in general .
But the right to manage as a local body is not the same thing as to claim transfer of the property to itself. The effect of transfer of the property is that the transferor ceases to be owner of it and the ownership stands transferred to the person in whose favour it is transferred. The resolution of the Committee to transfer land in the colony for park and school was an order for transfer without there being any sanction for the same in law.
13. This decision was followed in Chairman, Indore Vikas Pradhikaran Vs. Pure Industrial Coke & Chemicals Ltd. and others and the latter judgment was followed in M.Naga Venkata Lakshmi v. Vishakhapatnam Municipal Corporation and another .
14. In M.Naga Venkata Lakshmi (3 supra), the appellant before the Supreme Court had purchased a plot in a layout in Visakhapatnam under a sale deed dt.08-07-1982. At that time the said layout was not an approved layout. The competent authority to approve a layout plan was the Visakhapatnam Urban Development Authority (for short VUDA) constituted under the Andhra Pradesh Urban Areas (Development) Act, 1975. A revised plan was prepared in 1989 changing the name of the locality and regularizing the plots of others in the area but not the appellants plot. The appellants representation to VUDA was not responded to and the appellants application for sanction of a building plan was rejected by the Visakhapatnam Municipal Corporation on the ground that the proposed constructions fell in a reserved open space of the layout as per the revised plan of 1989. Her Writ Petition was dismissed by the High Court and was confirmed in the Writ Appeal. She then approached the Supreme Court. The Supreme Court held that this action of the VUDA and the Visakhapatnam Municipal Corporation amounts to depriving the appellant of a valuable right of property without payment of compensation. It observed that the appellant should have been informed that her land had been earmarked for providing an open space to the other owners of the layout. It therefore found fault with the orders passed by the High Court, set aside the said orders and remitted the matter back to the Single Judge for fresh consideration.
15. In para- 6 of the Counter affidavit , the said respondents state that as and when the GHMC takes up the road widening work on the subject site, necessary compensation will be paid to the petitioners, if the petitioners invoking Sec.146 and 147 of the HMC Act,1955.
17. In the year 2008, the Andhra Pradesh State Legislature enacted the Hyderabad Metropolitan Development Authority Act, 2008 (for short HMDA Act, 2008) constituting the Hyderabad Metropolitan Development Authority.
18. Section 54 of the said Act provides that any master plan prepared under the provisions of the Andhra Pradesh Urban Areas (Development) Act, 1975 already prepared and published by the Hyderabad Urban Development Authority concerned, and sanctioned by the Government before the commencement of this Act shall continue to be in force unless prepared afresh and superseded or revised under this Act. Thus the Master plan notified vide G.O.Ms.No.288 dt.3.4.2008 continues to be in force.
19. Section 32 of the HMDA Act, 2008 contains provisions for acquisition of land of a citizen required, reserved or designated in the Master Plan for a public purpose by the Government on request by the Metropolitan Development Authority or the local authority or other authority. The respondent Nos.2 is included in the definition of the term local authority under Section 2 (14) of the Act.
20. Section 32 of the Act states as follows:
Section 32. Power to acquire land under the Land Acquisition Act, 1984 :-
Any land required, reserved or designated in the Metropolitan Development Plan and Investment Plan or a Development Scheme or a Land Pooling Layout Scheme shall be deemed to be l and needed for a public purpose within the meaning of the Land Acquisition Act, 1894 (Central Act 1 of 1894) and may be acquired by the Government on request by the Metropolitan Development Authority or local authority or other authority.
21. In this view of the matter, I am unable to accept the contention of the respondents that as and when the GHMC takes up the road widening works on these roads, necessary compensation will be paid to the petitioner. It is not known when in future, the respondents would undertake road widening works and to expect the petitioner to wait till then to receive compensation for his land would be unfair.
22. It is incumbent on the part of the respondents to initiate proceedings under Section 32 of the HMDA Act, 2008 in accordance with the provisions of Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 for acquisition of the portion of the petitioners land required by the respondents for road widening and pay compensation to him. If not, the petitioner would be deprived of valuable property without compensation.
23. If the respondents are allowed to insist that petitioner must surrender the land to them free of cost if he wants respondents to consider his application for building permission, it amounts to coercing the petitioner to part with his property without compensation. The petitioner would not be able to develop the rest of the property as per his wishes by making constructions unless he agrees to this illegal demand of the respondents. In my opinion, it would be unjust to make the petitioner suffer in this manner. The petitioner cannot be compelled to give up valuable land purchased by him free of cost to the respondents on pain of denial of permission for construction in the rest of the land which is not required for road widening. Otherwise it would amount to legitimising the arbitrary and expropriatory action of the respondents contrary to the provisions of the Act and the law declared by the Supreme Court in the above decisions.
24. For the above reasons, the respondents are directed to initiate proceedings under Section 32 of the HMDA Act, 2008 in accordance with the provisions of Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 for acquisition of the portion of the land required by them for road widening and pay compensation to the petitioner. The requisition for the said purpose should be sent by the 2nd respondent to the 1st respondent within a period of two weeks from the date of receipt of a copy of this order; the 1st respondent shall initiate the process for acquisition for road widening within a period of one month thereafter; and conclude the same within three months. The respondents shall not insist on the petitioner surrendering the land required for road widening free of cost as a pre-condition for considering his application for permission for making construction in the land in question.
25. The Writ Petition is allowed accordingly. There shall be no order as to costs.
26. As a sequel, miscellaneous petitions pending, if any, shall stand disposed of.
__________________________________ JUSTICE M.S.RAMACHANDRA RAO Date: 16-10-2014