A.G.Ravindranath Reddy vs The State Of Telangana
2021 Latest Caselaw 604 Tel

        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;

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

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

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;

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

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