THE HON'BLE SRI JUSTICE A.ABHISHEK REDDY
WRIT PETITION No.18572 of 2020
ORDER:
Heard Sri Velagapudi Srinivas, learned counsel for the petitioners, learned Government Pleader for Municipal Administration and Urban Development for respondent No.1, Mr. Y. Rama Rao, learned Standing Counsel for HMDA for respondent No.2, and Sri N. Sridhar Reddy, learned counsel for respondent Nos.3 to 12. With the consent of both the parties, the writ petition is disposed of at the admission stage.
This writ petition is filed challenging the Revised Approval vide Layout Permit No.05/LO/Plg./HMDA/2015, dated 21.09.2020, issued by respondent No.2, the Commissioner, Hyderabad Metropolitan Development Authority, in respect of the land in Survey Nos.104/A, 140/AA, 140/E, 140/EE, 140/VU, 141/A, 141/AA, 141/EE, 145, 145/A and 145/AA of Kokapet Village, Gandipet Mandal, Ranga Reddy District.
The case of the petitioners, in brief, is that they are the owners of their respective villas in the Gated Community known as "Eden Garden" comprised in an extent of Acs.9.14 guntas in Survey Nos.104/A, 140/AA, 140/E, 140/EE, 140/VU, 141/A, 141/AA, 141/EE, 145, 145/A and 145/AA of Kokapet Village, Gandipet Mandal, Ranga Reddy District. It is stated that respondent Nos.3 to 11 and other owners have executed a Registered Development Agreement-cum-General Power of Attorney, dated 19.11.2014, in favour of respondent No.12 for development of the said land into a Gated Community of Villas; 2 that pursuant to the said Development Agreement-cum-General Power of Attorney, dated 19.11.2014, respondent No.12 has obtained permission for construction of villas vide permit dated 10.03.2015 and that according to the sanction plan, an extent of 5056 square meters is earmarked as open space and 4995.40 square meters as park area. But, respondent Nos.3 to 12, by suppressing the material facts, have obtained the impugned revised plan, dated 21.09.2020, for construction of additional villas in the land earmarked for open space, parks etc. Further, in the impugned revised approval, the extent of the land is mentioned as Acs.9-20.5 guntas instead of Acs.9-14 guntas and the open area is reduced from 5046 square meters to 4382.21 square meters. Hence, this writ petition.
This Court, on 20.10.2020, while issuing notice before admission, has suspended the impugned revised approval, and restrained the unofficial respondents from carrying out any construction activity or changing the nature of the open spaces, parks, amenities or any other common area earmarked as per the original layout.
Respondent No.12 has filed I.A.No.2 of 2020 seeking to vacate the interim order dated 20.10.2020.
A counter affidavit has been filed by respondent No.12 denying the averments made by the petitioners in the affidavit filed in support of the writ petition, and stating that the initial layout was obtained on 10.03.2015 in respect of the land admeasuring Acs.9.14 guntas only, but, thereafter, the layout was modified/revised by proceedings dated 20.10.2016 in view of 3 acquisition of the additional land, which was coming in the midst of the layout, increasing the area from Acs.9-14 guntas to Acs.9- 20.5 guntas, and also for developing certain areas left out for future expansion; that the impugned approval has been issued by respondent No.2 only after verification of title and other aspects and after being satisfied that the required percentage of open spaces are left out as per G.O.Ms.No.168 dated 07.04.2012. It is stated that the rights of the petitioners have not been violated either by this respondent or by respondent No.2 and that the petitioners have submitted their objections to respondent No.2 only after issuance of the impugned revised layout. It is further stated that respondent No.12 has not reduced the open spaces in the layout, but has increased the same by deleting some plots to suit the vastu aspect; that in fact, Plot Nos.6/A, 17/A, 18/A, 27/A, 34/A and 35/A were approved vide proceedings dated 20.10.2016, and therefore, respondent No.12 is entitled to make constructions in the said six plots, but, as per the impugned revised approval, constructions are sought to be made only in four plots and two plots were converted as open spaces; that the petitioners and others have already filed a suit vide O.S.No.655 of 2020 on the file of the I Senior Civil Judge, Ranga Reddy District, at L.B. Nagar, seeking permanent injunction and that the petitioners are espousing the very same cause before different forums which cannot be permitted, and therefore, prayed to dismiss the writ petition.
A reply affidavit has been filed by the petitioners to the counter affidavit filed by respondent No.12 stating that respondent No.12 has not brought the revised layout dated 20.10.2016 to the 4 knowledge of the petitioners at the time of sale of villas to them; that the respondent No.12 has furnished only approved layout dated 10.03.2015 at the time of sale of villas and referred the same in the registered sale deeds executed in their favour. That the respondent No.12 cannot contend that the layout is developed in accordance with the revised layout dated 20.10.2016. The respondent No.12 on one hand contends that it has provided two roads on the eastern side and western side of all the villas i.e., one green road and another service road. But, as seen in the impugned revised approval, the so called green road abutting to Villa Nos.1 to 6 on the eastern side is in fact shown as open space, and a part of the same is claimed as green road; if the green road is deducted from open area, the open area comes to 3621.21 square meters, and consequently, the open area works out to 9.87% of the total area only. Therefore, the contention of respondent No.12 that though the minimum required open area as per the norms is only 10% of the total area, and he has left an open area of 11.94%, is incorrect and the same is contrary to the record. It is further stated that respondent No.12 himself admitted in the counter affidavit that it intends to construct villas over the alleged three plots, which were shown as open spaces in the original layout of the year 2015. Further, it is stated that though the sanction of layout of gated community was obtained prior to 01.01.2017, the provisions of the Real Estate (Regulation and Development) Act, 2016 (for short, 'the RERA Act') are applicable for any revision of the layout; that the application for revision of the layout to increase the constructed area in the layout amounts to a fresh permission, and thereby, attracts the provisions of the RERA Act; 5 and that as per the RERA Act, it is mandatory for respondent No.12 to obtain the consent of 2/3rd of the purchasers of the villas, but, respondent No.12 did not obtain the consent of any of the owners of the villas in the gated community, and therefore, prayed to set aside the impugned revised layout.
Even though elaborate arguments are advanced on behalf of the petitioners as well as the respondents and they have relied on various provisions pertaining to the Hyderabad Metropolitan Development Authority Act, 2008, Building Rules and Regulations, and the RERA Act, and also relied on the judgments of the Hon'ble Supreme Court and this High Court, this Court, sitting under Article 226 of the Constitution of India, is not inclined to go into the merits of the case, as admittedly, they are all disputed questions of fact. As held supra, all these aspects are disputed questions of fact, which cannot be gone into by this Court under Article 226 of the Constitution of India (Ref. to State of Assam v. Bhaskar Jyoti Sarma (2015) 5 SCC 321, and Rufina D'Souza v. Municipal Corpn. of Greater Mumbai (2017) 4 SCC 81).
Admittedly, in this case, the petitioners have already given a representation to the authorities on 28.09.2020 to cancel the revised layout and the same is pending without any adjudication.
In view of the same, this Court is of the prima facie opinion that ends of justice would be met if the official respondents are directed to dispose of the representation dated 28.09.2020 made by the petitioners, strictly on merits, as expeditiously as possible, preferably within a period of eight weeks from the date of receipt of a copy of this order. It is needless to observe that before passing 6 any order, the unofficial respondents shall be put on notice and given an opportunity to submit their explanations. The parties shall also be given an opportunity of hearing. The official respondents shall communicate the orders likely to be passed to the parties. As the petitioners have already approached the Civil Court and filed a suit in O.S.No.655 of 2020, and an interim injunction order has been passed in the suit, this Court is of the opinion that the interest of the petitioners is already safeguarded and therefore, this Court is not inclined to continue the interim suspension order passed by this Court.
In view of the above mentioned facts and circumstances, the writ petition is disposed of and the official respondents are directed to consider the representation, dated 28.09.2020, made by the petitioners, as indicated above.
Miscellaneous petitions pending in this writ petition, if any, shall stand closed. There shall be no order as to costs.
________________________ A.ABHISHEK REDDY, J Date : 26.02.2021 va/smr