Mayuri Nagar Wel. Assn. vs State Of Ts.
2022 Latest Caselaw 3016 Tel

       THE HON'BLE SMT. JUSTICE P.MADHAVI DEVI

                     W.P. No.11734 of 2018
ORDER:

This writ petition is filed seeking a writ of

mandamus declaring the action of the second respondent in

proposing to sell parts of the land in Miyapur residential

complex earmarked as open areas and amenities in the

approved plan of the lay out in Sy.No.159, 28/1 and 20 of

Miyapur, Serilingampally Mandal, Ranga Reddy District,

through E-Auction-cum-E-Tender of sale of land parcels/open

plots/stray bits of HMDA dated 19.3.2018 mentioned at sy.no.8

(40 plots) of the table of contents of the said notification of the

2nd respondent, as illegal and arbitrary and consequently to

direct the respondents not to alienate the common areas in the

lay out and pass such other order or orders as this Court deems

fit in the facts and circumstances of the case.

2. Brief facts leading to the filing of this writ petition are that

an extent of 380.47 of surplus land in sy.no.159, 28/1 and 20

of Miyapur, Serilingampally, Ranga Reddy District was assigned

by the Government of Andhra Pradesh in favour of Hyderabad

Urban Development Authority (HUDA) in the year 1981. The PMD, J W.P.No.11734 of 2018

said land was developed by the said authority into a lay out with

plotting which was approved in the year 1986 through file

No.10552/PFO/Huda/83. In the said lay out, several parts of

the land were earmarked for providing public amenities such as

Parks, Health Centre, Community Hall, Bus Shelter, Post Office,

Police Station etc. Subsequently, the then urban development

authority, again issued a revised lay out and sold few of the

plots. Further by virtue of the Hyderabad Metropolitan

Development Authority Act 2008, Hyderabad Urban

Development Authority was dissolved and the 2nd respondent is

constituted and is under an obligation to utilize the areas meant

for public purposes in the lay out only for the purposes they

were earmarked for. However, the contention of the petitioners

is that the 2nd respondent, which is statutory authority, has

issued an E-Tender cum E-Auction notice for sale of the open

areas and areas earmarked for providing amenities to private

persons without developing the same for providing amenities

and public facilities to the residents of Mayuri Nagar Colony. It

is submitted that once there is an approved lay out and certain

areas are earmarked for public amenities and open areas, they

cannot be utilised for any other purpose. Therefore, challenging PMD, J W.P.No.11734 of 2018

the E-tender cum E-auction notification dated 19-03-2018, this

Writ Petition has been filed.

3. The Learned counsel for the petitioner, while reiterating

the above proposition referred to the GO Ms No. 72 Municipal

Administration and Urban Development (J1) Department, dated

20.02.2002. It is submitted that in the open areas that are

available in the original lay out as well as the revised lay out,

there are huge trees and rocks existing and if the said areas are

alienated and cleared for construction, the same will affect the

ecology and environment in the colony which in turn would

affect the comfort of living of the members and residents of the

first petitioner association and that if the areas meant for

common facilities/amenities are sold to private parties, the

members will be deprived of the said facilities. The petitioner

also pointed out the plots which have been earmarked for

common facilities and as to how the respondents are flouting

their own rules by alienating the said properties to private

persons through E-Auction cum E-Tender process. Therefore,

the petitioner is seeking setting aside of the E-Auction process

and to direct the respondents not to alienate the common areas

in the layout.

PMD, J W.P.No.11734 of 2018

4. The learned counsel for the petitioner has also drawn the

attention of this court to the copy of the lay out filed along with

the writ petition and pointed out that all the plots have been

given specific plot numbers, whereas the areas which have been

earmarked as open spaces meant for common

purposes/amenities have not been given any numbers and

therefore they cannot be termed as plotted areas and have to be

construed as open areas or areas meant for amenities and

cannot be alienated. He has also referred to GO.Ms.No.391, MA

and UD department, dated 23.6.1980 and Rule 4-B therein,

wherein, it is specified that in any lay out or specification for

residential area, minimum of 10% of the entire lay out area

shall be reserved for parks and play area and recreational

space. It is submitted that it is for this purpose that the open

plots have been left out within the lay out and by sale of such

properties, the respondent no.1 is flouting its own guidelines.

5. In support of his above contentions he placed reliance

upon the following 3 judgments.

1. P.Srinivas Kumar Vs. Greater Hyderabad Municipal

Corporation and other reported in 2011 SCC online AP

PMD, J W.P.No.11734 of 2018

2. Nahalchand Laloochand Private Limited vs. Panchali

Cooperative Housing Society Limited reported in 2010

SCC online SC 955

3. Machavarapu Srinivasa Rao and Another Vs.The

Vijayawada, Guntur, Tenali, Mangalagiri URban

Development Authority and Others in 2011 12 SCC154

6. The learned counsel for respondent no.1 and 2 relied

upon the averments of the counter affidavit and submitted that

the even as per revised lay out prepared in the year 1995 in an

extent of 239.46 Acres, open area to the extent of 13.70% was

left out and amenities area was also earmarked at 6.11%.

According to him, as per GO MS. No.391, 23.06.1980, only 10%

of the entire lay out area is required to be reserved for parks

and play area and recreational space. According to him, vide

GO. Ms. No. 526, dt. 31.7.2008, it was further clarified that

10% of the land shall be earmarked for open spaces and

recreation and community development including the social

infrastructure. It is submitted that even as per the revised plan

approved in the year 1995, 13.70% was earmarked for open

spaces which is more than the area actually required to be kept

for the said purposes as per rules. It is further reiterated that PMD, J W.P.No.11734 of 2018

the authority has left open 13.70% of the land and no plot in

this area has been put up for E-Auction. Further, in the counter

affidavit, the respondents have also shown the plots which have

been put up for sale and as to how they are not part of the open

space earmarked towards 10% of the lay out area. He also

placed reliance upon the following decisions in support of his

contentions.

1. Industrial Association of Small Scale industries, through

its chairman, Shyam Vs. State of Maharashtra through its

Secretary, Industries Department Mantralaya and Others.

      Reported in 2019 SCC       Bombay 778.

   2. Madhya      Pradesh        Housing    and      Infrastructure

Development Board and Another Vs. Vijay Bodana and

Others reported in 2020 4 SCC 521.

Therefore, according to the learned counsel for the

respondents, there is no violation of any rules/guidelines by the

respondents in conducting the E-Auction/E-Tender process. It

is also submitted that after 1995, and before the year 2018,

some plots were already auctioned and registered in favour of

successful builders and only left over plots were put up for sale.

He submits that the layout approved in the year 1995 and the PMD, J W.P.No.11734 of 2018

subsequent sale of certain plots have never been challenged and

therefore the layout has become final and as the land covered

by unsold plots is vested with the respondents, the writ

petitioners association had no right over the said land. It is

submitted that land left out after earmarking the land for open

spaces can be utilised by HMDA for any of its purposes. He

referred to GO.Ms.No.321, dt.23.6.1980 whereunder, under

Rule 4-B, 10% of the total lay out has to be marked towards

open spaces and also to GO.Ms.No.521 and Rule 52.

Thereunder, where 10 % of the plotted area is to be ear marked

for open spaces. He also referred to GO.Ms.No.228, dt.

3.4.2008, wherein above position has been reiterated under

Rule 8. He submitted that there is no allegation by the

petitioners that the open areas left over is less than 10% of the

plotted area. Therefore, he prayed for dismissal of the writ

petition.

7. The respondents 4 and 5 are the bidders in the open

auction. The learned counsel representing the respondent 4 and

5, submitted that when any plot is put up for sale by HMDA, the

normal presumption is that the same is free from litigation and

believing the same, the respondents No.4 and 5 have PMD, J W.P.No.11734 of 2018

participated in the auction and have been declared the

successful Auction parties and therefore the property should be

directed to be registered in their names. It is submitted that

EMD and 25% of the bid amount has already been deposited

with HMDA in the year 2018 itself and only provisional

certificate was issued to them. They also reiterated the

submissions of the respondent No.1 that 10% of the total area

has already been left over towards open area and therefore there

cannot be any challenge to the E-Auction process.

8. The learned counsel representing the respondent no.6, i.e.

another successful bidder in the E-Auction, submitted that

plots purchased by the members of petitioner association were

identified in the 1996 itself and therefore the land which is left

over without earmarking for any specific purpose, can be sold

by the respondent No.2 being the owner of the property. He

submitted that the HMDA, being the owner of the property, has

the power to modify the plan and there was no legal or statutory

right to the petitioners to claim open spaces to remain as such

forever. Respondent No.6 relied upon the decision of the Hon'ble

Supreme Court in the case of Jagmittar Sain Bhagat and Others PMD, J W.P.No.11734 of 2018

Vs. Director, Health Services, Haryana reported in 2013 10 SCC

136 in support of his contentions.

9. In reply to the above submissions, the learned counsel for

the petitioner submitted that the first petitioner being the

welfare association and its members having purchased the

plots, the legitimate expectation was that the plots, which have

been shown as earmarked for open spaces or common

amenities, will be maintained in the same way in the future. It

is submitted that section 58 of the HUDA Act and even the

reliance upon Section 15 of HMDA Act by the respondents

would further show that, though the HMDA has the power to

modify the layout, the same has not been done by the HMDA in

this case.

10. Having regard to the said rival contentions and material

on record, it is seen that the basic objection of the writ

petitioner association to the E-Auction cum E-Tender initiated

by the first and the second respondents is that the areas which

are earmarked as open areas and for amenities are being sold

away by the first and second respondents and thus the

respondents, who have to follow the rules and regulations

framed by them for regulation of the lay outs in the State of PMD, J W.P.No.11734 of 2018

Telangana are being flouted by them. As per GO.MS.No.288,

dt.3.4.2008 i.e. the latest notification, 10% of the total area is to

be earmarked for parks, play grounds, open spaces and for

infrastructure such as schools, dispensary, hospital public

utilities, shopping complex, bus stands etc. but the same is not

being followed by them.

11. In all the decisions relied upon by the learned counsel for

the petitioner, the issue is as to whether the authority can

change the land use without modifying the development plan.

The Hon'ble Supreme Court in the case of Machavarapu

Srinivasa Rao and another cited supra, Court was considering

the case of permission given by the respondent No.1, (i.e.

allotment of land of respondent No.1 therein,) to the respondent

No.2 therein, for the construction of a temple in the land

reserved for park in the development plan. The Hon'ble Supreme

Court held that the word 'development' is comprehensive and it

includes within its ambit all or any of the works contemplated

in a master plan or in the zonal development plan and it also

covers carrying out of building, engineering, mining or other

operations in, on, over or under land, or making of any material

change in existing building or land and re development of land, PMD, J W.P.No.11734 of 2018

but 'works of temporary nature' are excluded from meaning of

'development'. It was further held once the State Government

approves a master plan or Zonal development plan, no one can

change or alter the plan and allot land for any other purposes

than the one specified in the approved plan. Thus it was held

that only 'the State Government' can make modifications to the

approved plan after following the procedure laid down in the

section 12(3) of Act and that the powers of the development

authority (DA) in this regard are limited. It is further held that it

is only the State Government which could have changed the

land use, that too, after following the prescribed procedure

under section 12(3) of the Andhra Pradesh Urban Areas (DA of

1975).

12. In the case of Nahal Chand Laloo chand Private Limited

Vs. Panchali Cooperative Housing Society Limited, the Hon'ble

Supreme Court has considered the meaning of 'common areas'

referred in Section 3(f) of Maharashtra MAOA Maharashtra

Ownership of flats (regulation of the promotion of construction,

sale management and Transfer) Act of 1963 and observed that

MOFA restricts the right of the promoter in the block or building

constructed for flats or to be constructed for flats to which that PMD, J W.P.No.11734 of 2018

act applies, and that the promoter has no right to sell any

portion of such building which is not a flat, within the meaning

of section 2(a-1), and that the entire land and building has to be

conveyed to the organisation and that the only right which

remains with the promoter is to sell unsold flats and therefore it

is clear that the promoter has no right to sell stilt parking

spaces as these are neither a flat nor appurtenant or

attachment to a flat.

13. The learned counsel for the petitioner has relied upon this

judgment to buttress the point that the respondent can only sell

the plots which are unsold and cannot sell any other area which

are marked for common and open spaces.

14. In the case of R.Srinivas Kumar Vs GHMC and others

reported in 2013(4) ALD 161, the single judge of this court was

considering the issue of policy of the GHMC to comply with the

elementary norms of civic administration. After considering the

judgment of the Hon'ble Supreme Court in various case laws,

this Court issued the following directions:-

60. In view of the law laid down by the Hon'ble Supreme Court which are directly applicable to the facts presented before the Court, this Court issues the following directions:

PMD, J W.P.No.11734 of 2018

1. The Respondent Corporation should ensure that there is no deviation from the Master Plan or sanctioned plan under any circumstances. If there is any deviation, the GHMC should take immediate action to enforce the same.

2. The Respondent Corporation should periodically assess whether existing buildings are in accordance with the Master Plan. The concerned officials should be held accountable if there is any violation of the Master Plan.

3. With respect to existing construction, which is illegal and is in deviation of Master Plan, the GHMC should take action to demolish the same.

4. If there is any violation of the Master Plan or the GHMC sanctioned plan, GHMC should immediately inform the AP TRANSCO and HMWSSB to take appropriate action.

5. All public roads should be used for the movement of traffic and cannot be used for allotment to private agencies for the purpose of parking.

6. GHMC should notify designated parking zones in various places for the purpose of parking. GHMC should construct multi- layered parking zones at various places throughout the city.

7. GHMC should ensure that footpaths are used only for pedestrians and by standers. Under no circumstances, should the footpaths be used for hawking or any other material.

8. All commercial establishments in the city should have their own parking facility and cannot use the road for the purpose of parking. GHMC should not give permission to any new commercial establishment unless, they provide sufficient parking space for users of the said premises. With respect to the existing establishments, GHMC should serve notice on all commercial establishments within the city, requiring them to create appropriate parking space within six months. If the said establishments fail to do so, GHMC should take appropriate action for cancellation of their licence under the A.P. Shops and Establishments Act.

PMD, J W.P.No.11734 of 2018

15. In the case of Industrial Association and small scale

industries v. State of Maharashtra 2019 SCC online Bombay

778, the judgment cited by the learned counsel for the

respondents, the Bombay High Court has reiterated that though

the power to amend, alter or modify the layout is with the

development authority, it cannot alienate an area for open

spaces and amenity plots less than that provided under clauses

21.5 and 21.6 of the regulations of the 2009. However, it was

held that area beyond the required percentage of open space

can be utilised for further development of the industrial area by

following the procedure.

16. In the case of Madhya Pradesh Housing and

Infrastructure Development Board and another, the Hon'ble

Supreme Court has held that the principle of promissory

estoppel cannot be relied upon to hold that once the layout plan

is prepared, the same cannot be modified or changed. It was

held that the change or modification is permitted under the

Adhinayam, provided the modification or change is in

accordance with law i.e. as per the procedure laid down and

satisfies the development norms and conditions of the

development plans, zonal plans and town planning schemes. It PMD, J W.P.No.11734 of 2018

was further held that the modification cannot be struck down

when the law permits such change which is in terms of the

statute and the plans, that have the force of law and as long as

the layout plans conform to the development control norms, the

Court would not substitute its own opinion as to what principle

of policy would best serve greater public or private interest.

17. From the above judgments it is noticed/observed that the

HMDA/HUDA the authority which has formed and approved lay

out, it cannot by itself change the land use without approval of

the State Government. In the present case, the respondent

HMDA has not obtained any permission from the State

Government for change of land use of the plots which have not

been numbered and which are presumably for common

spaces and open areas. When the HMDA is selling the plots, it

may not be able to restrict the use of the land by the

purchasers. It cannot stipulate the condition that the purchaser

can only make constructions catering to a particular need in the

lay out. As rightly pointed out by the learned counsel for the

petitioner, the HMDA is required to leave minimum of 10 % of

the layout area for common areas and open spaces.

PMD, J W.P.No.11734 of 2018

Undisputably, the area left out for common areas and also open

spaces in the layout is much more than 10%.

18. The claim of the respondent is that nearly 13.75 % of the

revised layout in the year 1995 has been earmarked as open

spaces and that they are not interfering with the same.

19. When this contention was canvassed before this Court,

the learned counsel for the petitioner has proposed that a

committee consisting of the representatives of the petitioner

society/association as well the respondents 2 and 3 and the

officials of GHMC and revenue officials may be formed and

directed to measure the open areas left in the lay out to examine

and verify whether the open areas as claimed to have been left

out are as per the stipulations/guidelines under the HMDA Act.

It is submitted that if the open areas which are left out, after

excluding the areas which have been put up for sale are more

than 10% of the total area in the layout, then the petitioners

would not have any objection to the auction sale.

20. In view of the fact that the respondent No.1 has not

followed the prescribed procedure for change of land use, this

court is of the opinion that the R1 could not have offered the PMD, J W.P.No.11734 of 2018

said plots for sale without the change of land use. However, in

order to arrive at a solution to the problem on hand, the above

suggestion given by the learned counsel for the petitioner is

accepted. Therefore, this court deems it fit and proper to direct

the respondents 2 and 3 to constitute a committee along with

the officials of GHMC and also the representatives of the

petitioner as well as the concerned revenue authorities within a

period of 30 days from the date of receipt of this order, to

examine whether the open areas which are left out after putting

certain areas for auction sale are more than 10% and if such is

the case and if it is found that the left out open areas are more

than 10% of the total area of the layout, then the respondent

no.2 and 3 are at liberty to follow the procedure for change of

land use and thereafter proceed to sell the said properties in

accordance with the procedure laid down under the Act.

However, if it is found that the land which is left out for open

areas is less than 10% of the total area of the layout, then the

respondents 2 and 3 shall cancel the auction sale and only after

leaving the 10% of the land for open spaces, can they take

recourse to get permission from the state Government for

change of land use and thereafter for alienation of the balance

of the land. The entire exercise of forming a committee and PMD, J W.P.No.11734 of 2018

measuring of the open areas in the layout shall be carried out

within a period of 120 days from the date of receipt of copy of

this order.

21. The writ petition is accordingly disposed of. No order as

to costs.

Miscellaneous applications, if any pending, shall also

stand dismissed.

_____________________________ JUSTICE P.MADHAVI DEVI Date:23.06.2022 BV