Andhra HC (Pre-Telangana)
Smt. Channavajala Vijaya Lakshmi vs The State Of Telangana, Represented By ... on 8 December, 2014
Author: M.S.Ramachandra Rao
Bench: M.S.Ramachandra Rao
THE HONBLE SRI JUSTICE M.S.RAMACHANDRA RAO
WRIT PETITION No.34412 of 2014
08-12-2014
Smt. Channavajala Vijaya Lakshmi.Petitioner
The State of Telangana, represented by the Principal Secretary, Municipal
Administration, Hyderabad and others.... Respondents
Counsel for the Petitioner: Sri S.Sridhar
Counsel for Respondent No.1: Assistant Government Pleader for
Municipal Administration (TG)
Counsel for respondent Nos.2 and 3:Dr.Y.Padmavathy, standing
counsel for Greater Hyderabad Municipal
Corporation
<Gist :
>Head Note:
? Cases referred:
1. (1995) 1 SCC 47
2. (2007) 8 S.C.C. 705
3. 2007(8) Supreme Court Cases 748
4. (2008) 8 SCC 42
THE HONBLE SRI JUSTICE M.S.RAMACHANDRA RAO
WRIT PETITION No.34412 of 2014
ORDER:
Heard the learned counsel for the petitioner and Dr.Y.Padmavathi, learned standing counsel for the Greater Hyderabad Municipal Corporation (GHMC) appearing for respondent Nos.2 and 3.
The petitioner is the owner of a vacant house site/plot bearing No.39A admeasuring 372.50 sq.yds/311.45 sq.mtrs in survey No.60 of Kondapur Village, Serilingampally Mandal of Ranga Reddy District. She has purchased the same from one Ch.Mallikarjuna Prasad under a registered sale deed document No.1228/2013 dt. 30.01.2013 for valuable sale consideration.
The petitioner intended to make construction in the said plot and applied to the second respondent on 14.10.2014 for grant of building permission by enclosing the requisite fee.
The second respondent, vide impugned order/proceedings No.G/92/BA/WZ/73357/2014, dated 25.10.2014 rejected the petitioners application for building permission on the ground that her property is affected under 30 meter wide master plan road as per the Ramachandrapuram Zonal Development Plan.
This is questioned by the petitioner in this Writ Petition.
The petitioner has also obtained from the Hyderabad Metropolitan Development Authority, land use information, vide letter No.102184-LU/P5/HMDA/2014, dated 25.07.2014, whereby the land in survey No.60 is intended for residential use and the said letter also indicates that a 60 meter wide road is passing through the said survey number at one corner.
The petitioner contends that the impugned order cannot be sustained since mere indication in the master plan that a portion of the land of the petitioner is intended for use as a road would not deprive her of the ownership of the property to the extent of the affected portion and that if respondents require any portion of her property for road widening, it is incumbent on the part of the second respondent to initiate proceedings for acquisition of the same under the provisions of Sections 146 and 147 of the Greater Hyderabad Municipal Corporation Act, 1955 (for short the GHMC Act). He further contends that under Section 32 of the Hyderabad Metropolitan Development Authority Act, 2008 (for short the HMDA Act) in situations of this nature, proposals for acquisition should be initiated by the local authority i.e., the second respondent and sent to the first respondent and that without doing so, the petitioner cannot be compelled to give up her property free of cost.
The learned counsel for the petitioner places reliance on the order dt. 02.09.2014 of this Court in W.P.No.1995 of 2012 as well as the decisions of the Honble Supreme Court of India in Pt. Chet Ram Vashist v. Municipal Corpn. of Delhi , Chairman, Indore Vikas Pradhikaran Vs. Pure Industrial Coke & Chemicals Ltd. and others and M.Naga Venkata Lakshmi v.
Visakhapatnam Municipal Corporation and another .
In the counter-affidavit filed by respondent Nos.2 and 3, in para 4, it is stated that the petitioners site is getting affected in 30 meter wide master plan road, but the building application was rejected on the ground that the site was getting affected under proposed 100 feet wide master plan road and that the same was intimated to the petitioner on 25.10.2014.
As seen from the impugned order, there is no mention in the impugned order that the petitioners site being affected by 100 feet wide master plan road. It is not open to respondent Nos.2 and 3 to raise in counter affidavit such new grounds for rejection of the petitioners application which are not contained in the impugned order dt. 25.10.2014.
Learned Standing Counsel for GHMC also places reliance on Rules 16 and 17 of the Andhra Pradesh Building Rules, 2012 (for short the Rules) notified vide G.O.No.168, Municipal Administration and Urban Development, dated 07.04.2012.
Rule 16 of the Rules reads as under:
16. Concessions in Road Widening Cases:
(a) Where any land or site or premises for building is affected in Statutory Plan/Master Plan Road or Circulation network or a road required to be widened as per Road Development Plan, such area so affected in the road or circulation network shall be surrendered free of cost to the Sanctioning Authority by the owner of land. No development permission shall be given unless this condition is complied with.
(b) Upon surrendering such affected area the owner of the site would be entitled to a Transferable Development Right (TDR) as given in Rule-17.
OR The owner shall be allowed to construct an extra floor with an equivalent built area for the area surrendered subject to mandated public safety requirements.
OR The owner shall be allowed to avail concessions in setbacks including the front set-back (subject to ensuring a building line of 6m in respect of roads 30m and above, 3m in respect of roads 18m and below 30m and 2m in respect of roads less than 18m and subject to ensuring minimum side and rear setback of 2m in case of building of height up to 12m and 2.5m in case of buildings of height above 12m and up to 15m and 3m for buildings of height above 15 and up to 18m).
(c) The extent of concessions given shall be such that the total built up area after concession shall not exceed the sum of built up area allowed (as proposed) on total area without road widening and built up area equivalent to surrendered area.
(d) In case of plots less than 750 sq.m in addition to concessions in setbacks and height, the cellar floor may be allowed keeping in view of its feasibility on ground.
(e) In case of High Rise Buildings the concessions in setbacks, other than the front setback would be considered subject to maintaining minimum clear setback of 7m on the sides and rear side and such minimum setback area shall be clear without any obstructions to facilitate movement or fire fighting vehicles and effective firefighting operation.
(f) The above concessions shall be considered at the level of Sanctioning Authority / Competent Authority. The Sanctioning Authority / Competent Authority may consider any other concession as deemed fit with the prior approve of Government.
Rule 17 of the Rules contemplates grant of transferable development right.
The provision in Rule 16(a) of the Rules, which states that unless the area affected in road widening as per the statutory plan/master plan road or Circulation network is surrendered free of cost, no development permission shall be given, in my opinion, is ultra vires provisions of the GHMC Act. Admittedly Section 146 of the GHMC Act contemplates acquisition of immovable property by agreement between the Commissioner and the owner of the land and in the absence thereof, Section 147 of the GHMC Act provides for acquisition of the land under the provisions of the Land Acquisition Act, 1894 as amended from time to time. Rule 16(a) of the Rules is not in accordance with the GHMC Act, and is contrary to Section 146/Section 147 thereof. It is settled law that in case of conflict between delegated legislation and its parent substantive Act, the latter would prevail (See Novva Ads vs. Deptt. of Municipal Admn. And Water Supply ). Therefore, the provision requiring land owner to surrender land free of cost merely because a portion of the land owned by him is shown as road affected in a statutory plan/master plan or circulation network or as required to be widened as per road development plan is ultra vires provision of the GHMC Act. Such compulsory deprivation of property without paying any compensation violates Articles 14 and 300-A of the Constitution of India.
The HMDA Act was enacted by the then Andhra Pradesh State Legislature for establishment of Metropolitan Development Authority for the purposes of planning, coordination, supervising/promoting and securing the planned development of the Hyderabad Metropolitan Region. The said Legislation 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.
Section 18(2) of the HMDA Act prohibits land use contrary to that earmarked in the statutory master plan/area development plan/notified schemes.
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 14 of the HMDA 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.
In Pt. Chet Ram Vashist (1 supra), 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 by depriving the owner of its property and vesting it in the Corporation is 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 plan. 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 custodian 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.
This decision was followed in Indore Vikas Pradhikaran (2 supra) and the latter judgment was followed in M.Naga Venkata Lakshmi(3 supra).
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 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 of the High Court for fresh consideration.
Section 32 of the HMDA Act 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.
Section 32 of the HMDA 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 land 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.
The second respondent is included in the definition of the term local authority under Section 2 (14) of the HMDA Act.
In view of this provision, and law declared by the Supreme Court in the above referred decisions, it is incumbent on the part of the respondents to initiate proceedings under Section 32 of the HMDA Act in accordance with the provisions of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (for short the 2013 Act) for acquisition of the portion of the land required by them for road widening out of the property owned by the petitioner and pay compensation to the petitioner. If not, the petitioner would be deprived of her valuable property without compensation. The respondents conduct amounts to coercing the petitioner to part with her property without acquisition, if they want respondent Nos.2 and 3 to approve her application for building permission. The petitioner would not be able to develop the rest of the property as per her wish by making construction unless she agrees to this illegal demand of respondent Nos.2 and 3. In my opinion, it would be unjust to make the petitioner to suffer in this manner. The petitioner cannot be compelled to give up valuable land purchased by her to respondent Nos.2 and 3 free of cost 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 legitimizing the arbitrary and expropriatory action contrary to the provisions of the GHMC Act as well as the HMDA Act and the law declared by the Supreme Court in the above decisions. Similar view has been taken by this Court in its order dt.02.09.2014 in W.P.No.1995 of 2012.
Therefore, the respondents are directed to initiate proceedings under Section 32 of the HMDA Act in accordance with the provisions of the 2013 Act, for acquisition of the portion of the land owned by the petitioner required by them for road widening and pay compensation to the petitioner. The requisition for the said purpose should be sent by the second respondent to the first respondent within a period of two weeks from the date of receipt of a copy of this order; the first respondent shall initiate the process for acquisition for road widening within a period of one month thereafter; and conclude the same within a period of 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 her application for permission for making construction in portion of her land unaffected by road widening of 30 feet.
The Writ Petition is allowed accordingly. There shall be no order as to costs. The miscellaneous petitions, pending if any, shall stand closed.
_________________________ M.S.RAMACHANDRA RAO,J 08th December, 2014