Document Fragment View

Matching Fragments

3. The facts that led to the filing of the Writ Appeal are as follows :--

The 1st respondent -- Writ Petitioner viz., Smt. M. Ramanamma is the owner of the premises bearing No. 6-3-570 situated at Somajiguda, Hyderabad consisting of open land and a double storeyed building therein. It would appear that an agreement dated 28-2-1975 was entered into by the 1st respondent with the appellant viz., M/s. Ushodaya Publications Private Ltd., agreeing to lease out the building and the open land with certain conditions stipulated therein, the details of which arc not material for the purpose of these proceedings. The appellant was given possession of the open land and the temporary structures standing therein for construction of a building to establish a press to publish what is known as "Eenadu" daily newspaper. It is the case of the 1st respondent that the existing building was in the occupation of the Government and the lease deed would be executed after possession of the building was delivered by the Government and the lease would become operative thereafter. According to the appellant, under the agreement, it is entitled to proceed with the construction of the building in the open land and accordingly it was proceeding. Plans were submitted for construction. The 1st respondent filed O.S. No. 9 of 1976 on the file of the Court of II Addl. Judge, City Civil Court, Hyderabad for delivery of possession of the portion of the land and the appellant in turn filed O.S. No. 59 of 1976 for specific performance of the contract of lease. The litigation pending before the Civil Court is not relevant for the purpose of these proceedings. Since the proposed construction is not in accordance with the Bhagyanagar Urban Development Authority Zoning Regulations, 1981 (for short, "the Zoning Regulations") issued in G.O. Ms. No. 916, M.A. dated 11-8-1981, a proposal has been sent up by the Municipal Corporation of Hyderabad to the Government for necessary relaxation. The appellant has also made a similar request in his letter dated 3-5-1981 to relax the Bye-laws with regard to the open space on the southern and western side. Then remarks have been called for from the Special Officer, Municipal Corporation, who, in his proceedings dated 22-7-1983 wrote to the Government that the site in question is declared as "Public and Semi-public use zone" which is now treated as residential use zone. The proposed construction of the building for printing press is not permissible in a residential zone, and, therefore, the proposal for relaxation of Zoning Regulation 6.1.2 is to be made. The Government, pursuant thereto, issued the orders in G.O. Rt. No. 1062, Municipal Administration and Urban Development Department dated 30-12-1983 exercising the power under Regulation 12 of the Zoning Regulations and Regulation 19 of the Multi-storeyed Building Rules, 1981, relaxing Regulation 6.1.2 of the Zoning Regulations for change of the land use and Regulation 14(ii) of the Multi-storeyed Building Rules to the extent of 6.34 meters to maintain a minimum width of 24 meters in the rear side in favour of the proposed additions in the ground floor and the proposed construction of second to fifth floors over the existing ground floor and first floor, subject to the following conditions :

5. It was contended before the learned single Judge by the 1st respondent -- Writ Petitioner that under Section 12 of the Andhra Pradesh Urban Areas (Development) Act, 1975 (Act No. 1 of 1975), for short 'the Act', any modification as regards the 'land use' has to be made in conformity with Rule 13-A of the Urban Development Authority (Hyderabad) Rules, 1977 issued in G.O. Ms. No. 215 dated 1-4-1977, for short 'the Rules'. The Government have not complied with the mandatory requirement of Section 12 of the Act read with Rule 13-A of the Rules, and as such, the orders issued by the Government giving relaxation arc illegal. The contention of the Government, however, was that under Regulation 2.24 "owner" includes the lessee and, therefore, when the lessee has applied for relaxation, action was taken and relaxation was granted. When the lessee is the owner, obtaining the consent of the owner is not necessary, therefore, the issue of the G.O. and the Memo are perfectly legal. The learned counsel appearing for the 1st respondent--Writ Petitioner contended that Section 12 of the Act and Rule 13-A of the Rules would apply to the master plan and are inapplicable to individual plans or relaxation under the Zoning Regulations or the Multi-Storeyed Building Regulations. The Government is empowered under Regulation 12 of the Zoning Regulations and Regulation 19 of the Multi-Storeyed Building Regulations to relax the conditions, thereby, the relaxation of Regulation 6.1.2 of the Zoning Regulations is within the power of the Government. It is, therefore, contended that the orders are perfectly valid. In view of the above, the question that arose for consideration before the learned single Judge was, whether the impugned order relaxing Regulation 6.1.2 of the Zoning Regulations is in accordance with law or not.

19. It is next contended by the learned counsel for the appellant that the learned single Judge erroneously held that as there is no procedure provided under the Zoning Regulations, 1981 and Multi-Storeyed Regulations for granting exemption, the procedure prescribed under Section 12 of the Act read with Rule 13-A of the Rules has to be followed.

20. Admittedly, as rightly pointed out by the learned single Judge, there is no separate procedure provided under the Zoning Regulations as to how and in what manner applications for exemption under Regulation 12 of the Zoning Regulations, 1981 have to be considered. The learned Judge held that even though they relate to Master Plan since Zoning Regulations are integral part of the master plan, the procedure contemplated under Section 12 read with Rule 13-A has to be followed for grant of exemption under the Zoning Regulations, 1981.

22. The main part of relaxation by virtue of G.O.Ms. No. 1062 relates to Regulation No. 6.1.2 of the Zoning Regulations. As per the Zoning Regulations, 1981, the area in which the disputed property is situated comes under residential zone. In residential zones, the uses and accessory uses that are permitted in buildings or premises are boarding houses, bachelor quarters, hotels, places of public worship, public open spaces including play grounds and parks, schools, shops, public and semi-public uses. As per C.1.1 of Appendix 'C' of Regulation 6.1.2, the uses and accessory uses permitted in buildings and premises in General Commercial Zone includes "Newspapers and Presses" which the appellant wanted to establish. Admittedly, as per C.1.1, of Appendix 'C' of the Regulations, the use of 'newspapers and presses' in residential zone is prohibited. Since the property is situated in a residential zone and the appellant wanted to establish printing presses to deal in publication of newspapers in the said property, there will definitely be change of land use as per the Act and for that purpose, it is necessary for the appellant to obtain the relaxation from the Government of the Zoning Regulations, 1981. If there is a change of land use in any zonal area, certainly it affects the Zonal Development Plan of the Zone and in turn it affects the Master Plan of the City itself. Therefore, if there is a change of land use, then, the Government have to proceed in accordance with Section 12 of the Act which empowers the Government to make modifications of the plan with respect to land use. Admittedly, since the proposed construction and alterations is not in accordance with the Zoning Regulations, 1981, the Municipal Corporation of Hyderabad sent a proposal for necessary relaxation to the Government. The Government without making any publication of the modification sought for and without inviting objections and suggestions from any person or local authorities affected directly or indirectly with respect to the change of land use, as required under Section 12 of the Act read with Rule 13-A of the Rules, has straightway accepted the recommendations of the Special Officer of the Municipal Corporation of Hyderabad and issued the impugned orders in G.O. RT. No. 1062, M.A. Dated 30-12-1983. There is no consultation with the Hyderabad Urban Development Authority either. Since there is a change of land use in the zonal area on account of the proposed additions and constructions by the appellant and consequently the master plan of the city itself and since the Zoning Regulations, 1981 are integral part of the master plan, the procedure contemplated under Section 12 of the Act read with Rule 13-A of the Rules has necessarily to be followed, even though the plan relates to an individual plan. This is what the learned single Judge has pointed out in the Judgment impugned. We are absolutely in agreement with the view taken by the learned single Judge.