Telangana High Court
17P.Venkateswarlu vs Secy., Municipal Admn.Hyd And 7 ... on 4 October, 2023
Bench: Alok Aradhe, N.V.Shravan Kumar
THE HON'BLE THE CHIEF JUSTICE ALOK ARADHE
AND
THE HON'BLE SRI JUSTICE N.V.SHRAVAN KUMAR
+ WRIT PETITION No.12538 of 1999
and
WRIT PETITION No.25738 of 1997
% Date: 04.10.2023
# P.Venkateshwarlu and another
... Petitioners
v.
$ Government of Andhra Pradesh,
Rep. by Secretary, Municipal Administration,
Secretariat Buildings, Hyderabad,
and others.
... Respondents
! Counsel for the petitioner in W.P.No.12538 of 1999:
Mr. N.Vijay
! Counsel for the petitioner in W.P.No.25738 of 1997:
Mr. Siddharth Sharma
^ Counsel for the respondents : Mr. Pasham Krishna Reddy,
Learned Government Pleader
for Municipal Administration
and Urban Development
Department.
Mr. J.Prabhakar
Learned Senior Counsel for
APHB
Mr. Resu Mahender Reddy,
Learned Senior Counsel
representing Mr. Ravinder
Reddy Muppu, learned
counsel for respondents No.5
and 6 in W.P.No.12538 of
< GIST:
HEAD NOTE:
? CASES REFERRED:
1. 2001 (6) ALD 533 (DB)
2. (1991) 4 SCC 54
3. (1999) 6 SCC 464
4. (1995) 5 SCC 762
5. (2018) 15 SCC 407
6. (2019) 14 SCC 411
7. (2013) 5 SCC 336
8. (2019) 7 SCC 248
9. (2018) 15 SCC 407
10. (1997) 1 SCC 388
11. (2019) 14 SCC 411
12. (2021) 10 SCC 1
13. (2022) 10 SCC 544
14. 1997 (2) ALT 512
15. (2010) 2 SCC 27
THE HON'BLE THE CHIEF JUSTICE ALOK ARADHE
AND
THE HON'BLE SRI JUSTICE N.V.SHRAVAN KUMAR
WRIT PETITION No.12538 of 1999
and
WRIT PETITION No.25738 of 1997
COMMON ORDER: (Per the Hon'ble the Chief Justice Alok Aradhe)
In both the writ petitions, the grievance of the
petitioners is about construction of multi-storeyed
commercial complex by the respondent Nos.5 and 6 in the
open space admeasuring 600 sq. yards, which was
earmarked for a park in Plot Nos.S1 and S2 of Indian
Airlines Employees Housing Colony, located in
Sy.No.194/11 of Begumpet Village, Rangareddy District.
The petitioners have also prayed for a direction to the
respondent Nos.3 and 4 to demolish the aforesaid structure
raised by the respondent Nos.5 and 6. Both the writ
petitions were therefore heard together and are being
decided by this common order. For the facility of reference,
the facts in W.P. No.12538 of 1999, which has been filed
pro bono publico, are being referred to.
(I) FACTS:
2. The Andhra Pradesh Housing Board (hereinafter
referred to as, "APHB") sought permission of the State
Government on 20.06.1974 to acquire Ac.15.19 guntas
situated at Begumpet village for constructing a housing
colony for staff of Indian Airlines. The State Government
vide G.O.Ms.No.132, Health, Housing and Municipal
Administration Department, dated 28.12.1974 granted
permission to acquire the land. Thereupon, on 10.06.1975
the State Government issued a notification under Section
4(1) of the Land Acquisition Act, 1894 notifying that the
land admeasuring Ac.12.24 guntas forming part of
Sy.No.194/11 situated at Begumpet Village was required
for the purposes of constructing houses for the staff of
Indian Airlines.
3. On 20.02.1986, the State Government accorded
permission to APHB to take up construction of 159 houses.
According to the sanctioned layout, an open space of 600
sq. yards was earmarked for park in the Indian Airlines
Employees Housing Colony. The respondent Nos.7 and 8
asserting themselves to be the office bearers of the
Managing Committee of the aforesaid Housing Colony vide
Registered Sale Deeds, dated 12.06.1996, sold 600 square
yards of land to the respondent Nos.5 and 6.
4. According to respondent Nos.5 to 7, i.e., private
respondents, the original lay out prepared in the year
1984, in which the area in question was marked as park,
was revised and the said land admeasuring 600 square
yards earmarked as park was shown as the land for
commercial use and was numbered as Plot Nos.S1 and S2.
According to respondent Nos.5 to 7, on 05.10.1988, the
APHB authorised the respondent No.7 and respondent
No.8 (since deceased) to sell the plots, namely S1 and S2,
to the respondent Nos.5 and 6.
5. On 29.08.1996, respondent No.7 applied for
permission for construction of commercial complex. The
respondent Nos.7 and 8 furnished an undertaking on
26.12.1996 to the Municipal Corporation of Hyderabad
(hereinafter referred to as, "MCH") that in case the land
admeasuring 600 sq. yards is found to be the land reserved
for the purpose of park, the permission which may be
granted to them shall be deemed to be cancelled. The MCH
on 03.01.1997 accorded permission to raise construction of
cellar for parking, ground, first, second and third floors
with the condition that in case if it is found at a later date
that the said land is public park, permission granted by
MCH shall automatically deemed to be cancelled.
6. Thereafter, on 16.10.1999 Deed of Rectification was
executed by the respondent Nos.7 and 8 in favour of the
respondent Nos.5 and 6 correcting the Sale Deeds, dated
12.06.1996 by substituting the description of the property
as S1 and S2 in place of A-159 and A-160.
7. On 15.06.1999, W.P.No.12538 of 1999 was filed as
Public Interest Litigation in which a declaration was sought
that the action of the respondent Nos.1 to 4 in permitting
the respondent Nos.5 and 6 to construct commercial
complex on the land admeasuring 600 square yards in Plot
Nos.S1 and S2 in Indian Airlines Employees Housing
Colony in Sy.No.194/11 of Begumpet Village, Rangareddy
District, as illegal and arbitrary, and a consequential
direction was sought to the respondent Nos.1 to 4 to
demolish the structures raised by the respondent Nos.5
and 6 and also to direct the respondent Nos.1 to 4 to lay a
public park in the land as per the sanctioned layout.
8. In W.P.No.25738 of 1997, a declaration was sought
that Permit No.50/49 of 1996 granted in favour of Indian
Airlines Housing Society in respect of the area in
Sy.No.194/11 be declared as illegal and be set aside and
for a consequential direction was sought to the
respondents to demolish illegal structures constructed in
the area earmarked for the purpose of park.
9. A Division Bench of this Court by order dated
01.08.2000 passed in W.P.No.12538 of 1999 directed the
I Additional Chief Judge, City Civil Court, Secunderabad,
to conduct an enquiry on the issue whether the site in
dispute was earmarked for a park in the layout. The
Additional Chief Judge, City Civil Court, Secunderabad
conducted an enquiry and submitted a report on
18.08.2001 stating that the site in dispute was initially
earmarked for park but later the APHB revised the layout.
(II) PREVIOUS ROUND OF LITIGATION:
10. Thereafter, a Division Bench of this Court by
Judgment, dated 16.10.2001 in P.Venkateswarlu vs.
Government of Andhra Pradesh 1 inter alia held that the
APHB had no jurisdiction to revise the layout and sanction
construction of building complex on the area earmarked for
park and directed the respondent Nos.1 to 4 to take action
for demolition of the construction, which was raised on the
area earmarked as park in the layout.
11. Against the aforesaid order, Special Leave Petitions
were preferred before the Supreme Court, namely Civil
Appeal Nos.9582 and 9583 of 2003. The Hon'ble Supreme
Court remitted the matter for decision afresh by order
dated 19.04.2006. The order passed by the Hon'ble
Supreme Court reads as under:
These appeals have been preferred from two
separate orders. One set of appeals has been
1 2001 (6) ALD 533 (DB)
preferred from an order allowing a writ petition
filed by way of Public Interest Litigation on
16.10.2001. The second set of appeals relates to
an order dismissing an application for review
dated 1.2.2002. The parties have agreed that both
the orders dated 16.10.2001 and 1.2.2002 should
be set aside and the matters remanded back to
the High Court for reconsideration of the merits of
the matters afresh. The High Court will take into
consideration the documents which have been
brought on record before this Court. We do not
intend thereby to limit the power of High Court to
allow the production any such further material as
the High Court may think fit. The matters are
disposed of without expressing any view on the
merits.
The interim order as granted by this Court
will continue during the pendency of the appeals
by the High Court.
As far as the SLP (C) No. CC.7716-7717 of
2002 entitled Janakirama Enterprises (P) Ltd. is
concerned no order is passed on this matter. The
petitioner will be at liberty, if he is otherwise so
entitled in law, to make an application for
impleadment before the High Court.
The High Court is requested to dispose of
the matters as expeditiously as possible.
12. In the aforesaid factual background, these writ
petitions have arisen for our consideration.
(III) SUBMISSIONS OF PETITIONER IN W.P.No.12538
OF 1999:
13. Learned counsel for the petitioner in W.P. No.12538
of 1999 submitted that the Hyderabad Urban Development
Authority (HUDA) is competent authority to alter the
layout, but the same has not altered the layout. It is
further submitted that APHB has no authority in law to
alter the layout. It is contended that the land in question
was earmarked for the purpose of park in the original
layout and the commercial complex, could not have been
constructed on the aforesaid land in contravention of the
layout plan. It is pointed out that even the official
respondents namely, APHB, MCH and HUDA have taken a
stand in their counter affidavits that the land in question
was earmarked for the purpose of the park.
14. It is also contended that the respondent Nos.7 and 8
had no authority to execute the sale deeds on behalf of
APHB in favour of the respondent Nos.5 and 6. It is,
therefore, submitted that unauthorised construction raised
by the respondent Nos.5 and 6 is liable to be demolished.
In support of the aforesaid submissions, the learned
counsel for the petitioner has placed reliance on the
decisions of the Hon'ble Supreme Court in Bangalore
Medical Trust vs. B.S. Muddappa 2, M.I. Builders Private
Limited vs. Radhey Shyam Sahu 3, Dr. G.N. Khajuria vs.
Delhi Development Authority 4, Lal Bahadur vs. State of
U.P. 5, Municipal Corporation of Greater Mumbai vs.
Hiraman Sitaram Deorukhar6, Dipak Kumar Mukherjee
vs. Kolkata Municipal Corporation 7 and Kerala State
Coastal Zone Management Authority vs. State of
Kerala 8.
2 (1991) 4 SCC 54
3 (1999) 6 SCC 464
4 (1995) 5 SCC 762
5 (2018) 15 SCC 407
6 (2019) 14 SCC 411
7 (2013) 5 SCC 336
8 (2019) 7 SCC 248
(IV) SUBMISSIONS ON BEHALF OF PETITIONER IN
W.P.No.25738 OF 1997:
15. Learned counsel for the petitioner in W.P. No.25738
of 1997 has adopted the submissions made by the learned
counsel for the petitioner in W.P.No.12538 of 1999.
(V) SUBMISSIONS ON BEHALF OF RESPONDENT Nos.1
TO 4 IN W.P.No.12538 OF 1999:
16. Learned counsel for the respondent Nos.1 to 4,
namely, Government of Andhra Pradesh, APHB, HUDA and
MCH have supported the submissions made on behalf of
the petitioners in both the writ petitions. Learned Senior
Counsel for APHB has submitted that APHB did not
authorise to erect a commercial complex on the subject
land. It is further submitted that open spaces and parks
are properties of APHB and no one can deal with them.
(VI) SUBMISSIONS ON BEHALF OF RESPONDENT Nos.5
AND 6 IN W.P.No.12538 OF 1999:
17. On the other hand, learned Senior Counsel for the
respondent Nos.5 and 6 submitted that in view of the
averments made in W.P.No.12538 of 1999 as Public
Interest Litigation, the writ petition cannot be entertained
as Public Interest Litigation. It is further submitted that
earlier writ petitions, namely W.P.No.17494 of 1997 and
W.P.No.2965 of 1998 claiming similar relief were either
dismissed or withdrawn. It is further submitted that the
construction of commercial complex has been made as per
the revised layout. It is pointed out that the other
constructions have also been made as per the revised
layout and therefore, no interference is called for with the
construction of commercial complex in the writ petition.
(VII) SUBMISSIONS ON BEHALF OF ANDHRA PRADESH
HOUSING BOARD (APHB):
18. Learned Senior Counsel for APHB submits that the
first layout was approved by HUDA and any alteration in
the development plan can be approved by HUDA only. It is
further submitted that in the instant case, modification in
the layout has not been approved by HUDA.
(VIII) SUBMISSIONS ON BEHALF OF RESPONDENT No.7
IN W.P.No.12538 OF 1999:
19. Learned counsel for the respondent No.7 in
W.P.No.12538 of 1999 has adopted the submissions made
by learned Senior Counsel for the respondent Nos.5 and 6.
(IX) RELEVANT STATUTORY PROVISIONS:
20. Part IV of the Constitution of India deals with
Directive Principles of State Policy. Article 48A mandates
the States to make an endeavour to protect and improve
the environment and to safeguard the forests and the wild
life of the country. Article 51A prescribes fundamental
duties. Article 51A(g) provides that it shall be the duty of
every citizen of India to protect and improve the natural
environment including forests, lakes, rivers and wildlife
and to have compassion for living creatures.
21. At this stage, we may take note of relevant statutory
provisions. The Andhra Pradesh Housing Board Act, 1956
(hereinafter referred to as 'the 1956 Act') is an Act to
provide for measures to be taken to deal with and satisfy
the need of housing accommodation in the State,
particularly for the weaker sections of the society. The
APHB is a body incorporated under Section 3 of the 1956
Act. Chapter III of the 1956 Act deals with housing
schemes. Section 21 provides that it shall be duty of the
Board to undertake housing schemes. Section 22
enumerates the matters to be provided for by the housing
schemes. The relevant extract of Section 22 reads as
under:
22. Notwithstanding anything contained in
any other law for the time being in force, a
housing scheme may provide for all or any of the
following matters, namely:-
(a) to (i) xxx xxx
(j) the provision of parks, play-fields and
open spaces for the benefit of any area comprised
in the scheme or any adjoining area and the
enlargement of existing parks, play-fields, open
spaces and approaches;
22. Section 23 of the 1956 Act provides that no housing
scheme shall be made for area included in the
improvement scheme and the same should not be
inconsistent with town planning scheme unless the State
Government by a general or special order otherwise directs.
23. The Telangana Housing Scheme (Acquisition of Land)
Act, 1961 (hereinafter referred to as 'the 1961 Act') is an
Act to provide for acquisition of certain lands required for
purposes of executing housing schemes under 1946 Act.
Section 4 of the 1961 Act deals with the transfer of land to
Housing Board.
24. The State Legislature has enacted the Telangana
Urban Areas (Development) Act, 1975 (hereinafter referred
to as 'the 1975 Act, for brevity) with an object to provide for
development of urban areas in the State, according to plan
and matters ancillary thereto. Section 2(o) defines the
expression 'urban areas' to mean the area comprised
within the jurisdiction of Municipal Corporation of
Hyderabad or of any Municipality constituted under the
Telangana Municipalities Act, 1965 and also any such area
in the vicinity as the Government may, having regard to the
extent of, and the scope for, the urbanization of that area
or other relevant considerations, specify in this behalf, by
notification; and such other area as the Government may,
by notification, declare to be an urban area, which in the
opinion of the Government, is likely to be urbanised.
25. Section 3 of the 1975 Act provides for Constitution of
Urban Development Authority. Chapter III deals with
Master Plan and Zonal Development Plans. Section 6
mandates the Urban Development Authority to carry out
the civic survey of and prepare a master plan for the
development area concerned. Section 8 prescribes the
procedure to be followed in preparation and approval of
plans. Section 11 provides that certain plans already
prepared and sanctioned shall be deemed to have been
prepared and sanctioned under the aforesaid Act. Section
12 deals with modification to the plan. Section 12 of the
1975 Act reads as under:
12. Modifications to plan:- (1) The Authority
may make such modifications to the plan as it
thinks fit, being modifications which, in its
opinion, do not effect important alterations in the
character of the plan and which do not relate to
the extent of land uses or the standards of
population density.
(2) The Government may suo motu or on a
reference from the Authority make any
modifications to the plan, whether such
modifications are of the nature specified in sub-
section (1) or otherwise.
(3) Before making any modifications to the
plan, the Authority or, as the case may be, the
Government shall publish a notice in such form
and manner as may be prescribed inviting
objections and suggestions from any person with
respect to the proposed modifications before such
date as may be specified in the notice and shall
consider all objections and suggestions that may
be received by the Authority or the Government.
(4) Every modification made under the
provisions of this section shall be published in
such manner as the Authority or the
Government, as the case may be, may specify and
the modifications shall come into operation either
on the date of the publication or on such other
date as the Authority or the Government may fix.
(5) When the Authority makes any
modifications to the plan under sub-section (1), it
shall report to the Government the full
particulars of such modifications within thirty
days of the date on which such modifications
come into operation.
(6) If any question arises whether the
modifications proposed to be made by the
Authority are modifications which effect
important alterations in the character of the plan
or whether they relate to the extent of land-uses
or the standards of population density, it shall be
referred to the Government whose decision
thereon shall be final.
(7) Any reference in any other Chapter,
except this Chapter, to the Master Plan or the
Zonal Development Plan shall be construed as a
reference to the Master Plan or the Zonal
Development Plan as modified under the
provisions of this section.
26. Section 13 provides for declaration of development
areas and development of land in those and other areas.
Section 13(4) of 1975 Act mandates that after
commencement of the Act, no development of land within
development area shall be undertaken or carried out by
any person or body including any department of the
Government, unless permission for such development has
been obtained in writing from the Authority in accordance
with the provisions of the 1975 Act. Section 13 is extracted
below for the facility of reference:
13. Declaration of development areas and
development of land in those and other areas:-
(1) As soon as may be after the commencement of
this Act, where Government consider it necessary
to do so for purposes of proper development of
any urban area or group of urban areas in this
State they may, by notification, declare such
urban area or group of urban areas to be a
development area for the purposes of this Act.
(2) The Government may, by notification
and in accordance with such rules as may be
made in this behalf-
(a) Exclude from a development area any
area comprised therein; or
(b) include in development area any other
area.
(3) Save as otherwise provided in this Act,
the Authority shall not undertake or carry out
any development of land in any area which is not
a development area.
(4) After the commencement of this Act, no
development of land within the development area
shall be undertaken or carried out by any person
or body including any department of the
Government, unless permission for such
development has been obtained in writing from
the Authority in accordance with the provisions of
this Act.
(5) After the coming into operation of any of
the plans in any area within the development
area, no development shall be undertaken or
carried out in that area unless such development
is also in accordance with such plans.
(6) Notwithstanding anything in any other
law or the provisions contained in sub-sections
(4) and (5), development of any land undertaken
in accordance with any law by any person or body
including any department of the Government or
any local authority before the commencement of
this Act, may be completed without compliance
with the requirements of those sub-sections:
Provided that such development of land
shall be completed within one year from the date
of commencement of this Act; unless the
Authority for good and sufficient reason, extends
the said period of one year for such further period
as it deems fit.
(7) After the commencement of this Act, no
development of land shall be undertaken or
carried out by any person or body including any
department of the Government in such area
adjoining to or in the vicinity of the development
area, as may be notified by the Government
unless approval of or sanction for such
development has been obtained in writing from
the local authority concerned, in accordance with
the provisions of relevant law relating thereto,
including the law relating to town planning for
the time being in force and the rules and
regulations made thereunder:
Provided that the local authority concerned
may, in consultation with the Authority, frame or
suitably amend its regulations in their application
to such area adjoining to or in the vicinity of the
development area.
(8) (a) Where any part of the area adjoining
to or in the vicinity of the development area, as
notified under sub-section (7), is in the process of
rapid development or is likely to develop in the
near future, the local authority concerned shall,
either on the direction of the Government or on
the advice of the Authority, prepare in
consultation with the Authority, Town Planning
Scheme under the law relating to Town Planning,
for the time being in force, and publish the
schemes as required under that law and submit
them to the Government for sanction.
(b) Any development in the area covered by
such Town Planning Schemes shall be in
accordance with the provisions of the schemes as
sanctioned by the Government.
(c) Where in regard to the matters specified
in sub-section (7) and of this sub-section there is
a difference of opinion between the local authority
concerned and the Authority, the matter shall be
referred to the Government, whose decision
thereon shall be final.
(9) In this section, and in Sections 14, 16
and 41 the expression 'Department of the
Government' means any department, organisation
or Public Undertaking of the State Government or
of the Central Government.
27. Section 14 provides for the manner in which,
application for permission referred to in Section 13 shall be
dealt with. Section 15 of the 1975 Act prohibits the use of
land and buildings in contravention of the plans. Section
15 reads as under:
15. Use of the land and buildings in
contravention of plans:-
After the coming into operation of any of the
plans in a zone, no person shall use or permit to
be used any land or building in that zone
otherwise than in conformity with such plan:
Provided that it shall be lawful to continue
to use upon such terms and conditions as may be
determined by regulations made in this behalf,
any land or building for the purpose for which,
and to the extent to which, it is being used on the
date on which such plan comes into force.
28. Section 41 of the 1975 Act which was in vogue at the
relevant point of time, prior to its amendment by Act No.6
of 2008 reads as under:
41. Penalties:- (1) Any person who, whether at
his own instance or at the instance of any other
person or any body including a department of the
Government, undertakes or carries out
development of any land in contravention of the
Master Plan or Zonal Development Plan or
without the permission, approval or sanction
referred to in Section 13 or in contravention of
any condition subject to which such permission,
approval or sanction has been granted, shall be
punishable with imprisonment for a term which
may extend to three years or with fine which may
extend to ten thousand rupees or with both, and
in the case of a continuing offence, with further
fine, which may extend to five hundred rupees for
every day during which such offence continues
after conviction for the first commission of the
offence.
(2) Any person who uses any land or
building in contravention of the provisions of
Section 15 or in contravention of any terms and
conditions determined by regulations under the
proviso to that section shall be punishable with
imprisonment for a term which may extend to
three years or with fine which may extend to five
thousand rupees or with both, and in the case of
a continuing offence with further fine which may
extend to two hundred and fifty rupees for every
day during which such offence continues after
conviction for the first commission of the offence.
(3) Any person who obstructs the entry of
a person authorized under Section 40 to enter
into or upon any land or building or molests such
person after such entry, shall be punished with
imprisonment for a term which may extend to six
months or with fine which may extend to one
thousand rupees, or with both.
29. Section 42 of the 1975 Act provides for order of
demolition of building. Section 42 reads as under:
42. Order of demolition of building:- (1) Where
any development has been commenced or is being
carried on or has been completed in
contravention, of the Master Plan or Zonal
Development Plan or without the permission,
approval or sanction referred to in Section 13 in
contravention of any condition subject to which
such permission, approval or sanction has been
granted-
(i) in relation to a development area, any officer of
the Authority empowered by it in this behalf;
(ii) in relation to any other area within the local
limits of a local authority, the competent
authority thereof, may in addition to any
prosecution that may be instituted under this
Act, make an order directing that such
development shall be removed by demolition,
felling or otherwise by the owner thereof or by the
person at whose instance the development has
been commenced or is being carried out or has
been completed, within such period being not less
than five days and not more than fifteen days
from the date on which a copy of the order of
removal, with a brief statement of the reasons
therefor, has been delivered to the owner or that
person as may be specified in the order, and on
his failure to comply with the order, the officer of
the Authority or, as the case may be, the
competent authority may remove or cause to be
removed the development and the expenses of
such removal shall be recovered from the owner
or the person at whose instance the development
was commenced or was being carried out or was
completed as arrears of land revenue:
Provided that no such order shall be made
unless the owner or the person concerned has
been given a reasonable opportunity to show-
cause why the order should not be made.
(2) If any development in an area specified
in sub-section (7) of Section 13 has been
commenced or is being carried on or has been
completed in contravention of the Master Plan or
Zonal Development Plan or without the
permission, approval or sanction referred to in
Section 13 or in contravention of any condition
subject to which permission, approval or sanction
has been granted and the competent authority
has failed to remove or cause to be removed the
development within the time that may be
specified in this behalf by the Director of Town
Planning, the Director may, after observing such
procedure as may be prescribed, direct any officer
to remove or cause to be removed such
development and that officer shall be bound to
carry out such direction and any expenses of
such removal may be recovered from the owner or
the person at whose instance the development
was commenced or was being carried out or was
completed as arrears of land revenue.
(3) Any person aggrieved by an order under
sub-section (1), may appeal to the Vice-Chairman
of the Authority against that order within thirty
days from the date thereof, and the Vice-
Chairman may after hearing the parties to the
appeal either allow or dismiss the appeal or may
reverse or vary any part of the order:
Provided that where the original order is
passed by the Vice-Chairman himself the appeal
shall lie to the Authority.
(4) Any person aggrieved by the direction of
the Director under sub-section (2) may appeal to
the Government within thirty days from the date
thereof; and the Government may, after giving an
opportunity of hearing to the person aggrieved,
either allow or dismiss the appeal or may reverse
or vary any part of the direction.
(5) The decision of the Vice-Chairman or
the Authority or the Government and subject to
any decision on appeal, the order under sub-
section (1) or, as the case may be, the direction
under sub-section (2), shall be final and shall not
be questioned in any Court of law.
(6) The provisions of this section shall be in
addition to, and not in derogation of, any other
provisions relating to demolition of buildings
contained in any other law for the time being in
force.
(7) In this Section, and in Section 43,
'Competent Authority' in relation to a local
authority means any authority or officer of that
local authority empowered or authorised to order
demolition of buildings or stoppage of building
operations contained in any other law for the time
being in force.
30. Section 43 of the 1975 Act deals with power to stop
unauthorized development. Section 43 reads as under:
43. Power to stop unauthorised development:-
(1) Where any development in any area has been
commenced in contravention of the provisions of
Section 13 or without the permission, approval or
sanction referred to in that section or in
contravention of any condition subject to which
such permission, approval or sanction has been
granted-
(i) in relation to development area, the Authority
or any officer of the authority empowered by it in
this behalf;
(ii) in relation to any other area specified in sub-
section (7) of Section 13 within the local limits of
a local authority, the competent authority thereof;
may in addition to any prosecution that may be
instituted under this Act, make an order
requiring the development to be discontinued on
and from the date of the service of the order, and
such order shall be complied with accordingly.
(2) Where such development is not
discontinued in pursuance of the order under
sub-section (1), the Authority or the officer of the
Authority or the competent authority, as the case
may be, may require any police officer to remove
the person by whom the development has been
commenced and all his assistants and workmen
from the place of development within such time
as may be specified in the requisition and such
police officer shall comply with the requisition
accordingly.
(3) If any development in an area specified
in sub-section (7) of Section 13 has been
commenced in contravention of the Master Plan
or Zonal Development Plan or without the
permission, approval or sanction referred to in
Section 13 or in contravention of any condition
subject to which such permission, approval or
sanction has been granted and the competent
authority has failed to make an order under sub-
section (1) or, as the case may be, a requisition
under sub-section (2), within the time that may
be specified in this behalf by the Director of Town
Planning, the Director may, after observing such
procedure as may be prescribed, direct any officer
to make the order or requisition as the case may
be, and that officer shall be bound to carry out
such direction; and the order or direction made
by him in pursuance of the direction shall be
complied with accordingly.
(4) After the requisition under sub-section
(2) or sub-section (3) has been complied with, the
Authority or the competent Authority or the
officer to whom the direction was issued by the
Director under sub-section (3), as the case may
be, may depute, by a written order a police officer
or employee of the Authority or local Authority
concerned to watch the place, in order to ensure
that the development is not continued.
(5) Any person failing to comply with an
order under sub-section (1) or, under sub-section
(3), as the case may be, shall be punished with
fine which may extend to one percent of the value
of the land, building in question for every day
during which the non-compliance continues after
the service of the order.
Provided that the fine imposed shall in no
case be less than fifty percent of the fine
proposed.
(6) No compensation shall be claimed by
any person for any damage which he may sustain
in consequence of the removal of any
development under Section 42 after
discontinuance of the development under this
section.
(7) The provisions of this section shall be in
addition to, and not in derogation of any other
provision relating to stoppage of building
operations contained in any other law for the time
being in force.
31. Section 57 of the 1975 Act deals with effect of other
laws. Section 57 is extracted below for the facility of
reference:
57. Effect of other laws:- (1) Nothing in this Act
shall affect the operation of the Andhra Pradesh
Slum Improvement (Acquisition of Land) Act,
1956.
(2) Save as otherwise provided in sub-
section (6) of Section 42 or sub-section (7) of
Section 43 or sub-section (1) of this section, the
provision of this Act and the rules and
regulations made thereunder shall have effect,
notwithstanding anything inconsistent therewith
contained in any other law.
(3) Notwithstanding anything in any other
law-
(a) when permission for development in respect of
any land has been obtained under this Act, such
development shall not be deemed to be unlawfully
undertaken or carried out by reasons only of the
fact that permission, approval or sanction
required under such other law for such
development has not been obtained.
(b) when permission for such development has
not been obtained under this Act, such
development shall not be deemed to lawfully
undertaken or carried out by reason only of the
fact that permission, approval or sanction
required under such other law for such
development has not been obtained.
32. Section 58 of the 1975 Act deals with power of the
State Government to frame rules to carry out the purposes
of the Act. In exercise of powers under Section 58(1) of the
1975 Act, the Government has framed the Rules, namely
the Urban Development Authority (Hyderabad) Rules, 1977
(for the sake of brevity, referred to as 'the 1977 Rules').
Rule 11 deals with procedure for preparation of present
land use map, whereas Rule 12 prescribes the procedure
for preparation and publication of master plan. Rules 11
and 12 of the 1977 Rules are reproduced below for the
facility of reference:
11. Procedure for preparation of present Land
Use Map:-
(1) The civic survey to be carried out by the
Authority under sub-section (1) of Section 6 of the
Act may include survey and analysis of the
Hyderabad Development area and its vicinity
areas with reference to physical and socio-
economic aspects.
(2) As soon as may be, the Authority shall prepare
a present Land Use Map and a Land Use Register
in the form prescribed below indicating the
present use of every piece of land in the
development area.-
Sl Name of Block Survey Nature Approxim Rem-
No ward No. No. of use ate arks
locality Street extent
of land
(1) (2) (3) (4) (5) (6) (7)
12. Procedure for preparation and publication
of Master Plan:-
(1) As soon as may be, after the declaration of the
development area, the Authority shall prepare a
Master Plan for the development area or any part
thereof.
(2) The Master Plan shall.--
(i) indicate broadly the manner in which the lands
covered under development area are proposed to
be used;
(ii) allocate areas or zones of land-
(a) for residential, commercial, industrial
and agricultural use or purposes;
(b) for public and semi-public open spaces,
parks and playgrounds;
(c) for such other purposes as the Authority
may think fit;
(iii) indicate, define and provide for-
(a) the proposed National Highways, arterial
roads, ring roads and major streets;
(b) other proposed lines of communication
including railways, tramways, airports and
canals;
(c) such other items, and purposes as the
Authority may think fit.
(3) Any such plan shall include such maps and
descriptive matter as may be necessary to explain
and illustrate the proposals in the Master Plan
and shall include a present Land Use Map
referred to in Rule 12 above.
(4) Soon after the preparation of the draft (Master)
Plan for the development area or any part thereof,
the Authority shall publish a notice in Form No. 1
appended to these rules in a prominent place in
at least three local daily newspapers inviting
objections and suggestions allowing a period not
less than 15 days from any person or local
authority. The said notice shall also indicate the
place and time where copies of the draft Master
Plan may be inspected; any person residing or
owning property within the inspected area or local
Authority operating within the affected area will
be entitled to represent in writing to the Authority
any objections and suggestions which they may
have in regard to the Land Use Map or the draft
Master Plan.
(5) After expiry of the said period, the Authority
shall prepare a list of objections and suggestions
in Form No. 11 appended to these rules, to
consider the representations so made within the
time specified and any other information available
to it, and finalize the present Land Use Map and
the draft Master Plan as it thinks fit.
(6) The Authority will then submit the Land Use
Map and the draft Master Plan to the
Government, as required under Section 9 of the
Act for their final approval.
(7) After the Government's approval, the Authority
shall publish a notice in a prominent place in at
least three local daily news papers indicating the
fact of the final approval of the Land Use Map and
the Master Plan and the place (s) and time (s)
where a copy of each of the said Land Use Map
and the Master Plan can be inspected.
(8) A land use Map and Master Plan published by
the Authority under Section 10 of the Act shall be
conclusive proof of their having been duly made
and approved. Such land use map and Master
Plan shall have effect from the date of publication
of such notice and be conclusive proof of their
contents. The execution of the plan shall be
commenced forthwith.
33. Rule 13 deals with the power of the authority to
modify the master plan, whereas Rule 13-A deals with
power of the State Government to modify the master plan.
Rules 13 and 13-A read as under:
13. Modifications to the Master Plan:-
(1) In case the Authority desires to make any
modification in the Land Use Map or Master Plan
under sub-section (1) of Section 12 of the Act, a
public notice shall be issued in a prominent place
in at least three local (Telugu, Urdu and English)
newspapers by the Authority.
(2) The Authority shall invite, in Form No. III
appended to these rules objections and
suggestions to be given in Form No. IV appended
to these rules from any person or local authority
affected directly or indirectly with respect to the
Master Plan, Land Use Map proposed to be
modified.
(3) Soon after the objections and suggestions are
received by the Authority, the Authority shall
conduct local enquiries and other hearings, if
necessary, and given an opportunity to the
person affected (whether directly or otherwise) to
be held on a specified date or dates before the
modifications are finally approved.
13-A. Modifications to the Master Plan by the
Government:-
(1) In case the Government desire to make any
modification to the Master Plan under subsection
(2) of Section 12 of the Act, a notification shall
after consultation with the Authority be published
in the Andhra Pradesh Gazette in such form as
the Government may deem fit inviting objections
and suggestions from any person or local
authority affected directly or indirectly with
respect to the Master Plan proposed to be
modified giving Fifteen Days time in respect of
lands proposed to be converted to other than
Industrial use and Seven days time in respect of
lands proposed to be converted from any use to
'Industrial use' for the receipt of such objections
and suggestions.
(2) Soon after the objections and suggestions are
received by the Government, the Government
may, if necessary, have local enquiries conducted
and give an opportunity to the persons affected to
state their objections before the modifications are
approved and published in the Andhra Pradesh
Gazette.
(X) JUDICIAL PRONOUNCEMENTS:
34. The Hon'ble Supreme Court in Bangalore Medical
Trust (supra) dealt with the issue whether area having
been reserved in the sanctioned scheme for public park can
be allotted for construction of a hospital. The Hon'ble
Supreme Court in paras 24 to 29 held as under:
24. Protection of the environment, open
spaces for recreation and fresh air, playgrounds
for children, promenade for the residents, and
other conveniences or amenities are matters of
great public concern and of vital interest to be
taken care of in a development scheme. It is that
public interest which is sought to be promoted by
the Act by establishing the BDA. The public
interest in the reservation and preservation of
open spaces for parks and playgrounds cannot be
sacrificed by leasing or selling such sites to
private persons for conversion to some other user.
Any such act would be contrary to the legislative
intent and inconsistent with the statutory
requirements. Furthermore, it would be in direct
conflict with the constitutional mandate to ensure
that any State action is inspired by the basic
values of individual freedom and dignity and
addressed to the attainment of a quality of life
which makes the guaranteed rights a reality for
all the citizens. [See Kharak Singh v. State of U.P.,
(1964) 1 SCR 332 : AIR 1963 SC 1295 : (1963) 2
CriLJ 329; Municipal Council, Ratlam
v. Vardhichand, (1980) 4 SCC 162 : 1980 SCC
(Cri) 933 : (1981) 1 SCR 97; Francis Coralie
Mullin v. Administrator, Union Territory of Delhi,
(1981) 1 SCC 608 : 1981 SCC (Cri) 212 : (1981) 2
SCR 516; Olga Tellis v. Bombay Municipal
Corporation, (1985) 3 SCC 545; State of
H.P. v. Umed Ram Sharma, (1986) 2 SCC 68 : AIR
1986 SC 847 and Vikram Deo Singh
Tomar v. State of Bihar, 1988 Supp SCC 734 :
1989 SCC (Cri) 66 : AIR 1988 SC 1782]
25. Reservation of open spaces for parks and
playgrounds is universally recognised as a
legitimate exercise of statutory power rationally
related to the protection of the residents of the
locality from the ill-effects of urbanisation. [See
for e.g : Karnataka Town and Country Planning
Act, 1961; Maharashtra Regional and Town
Planning Act, 1966; Bombay Town Planning Act,
1954; the Travancore Town and Country Planning
Act, 1120; the Madras Town Planning Act, 1920;
and the rules framed under these statutes; Town
and Country Planning Act, 1971 (England and
Wales); Encyclopaedia Americana, Volume 22,
page 240; Encyclopaedia of the Social Sciences,
Volume XII at page 161; Town Improvement
Trusts in India, 1945 by Rai Sahib Om Prakash
Aggarawala, p. 35 et seq.; Halsbury's Statutes,
4th edn., p. 17 et seq. and Journal of Planning
and Environment Law, 1973, p. 130 et seq. See
also : Penn Central Transportation Company
v. City of New York, 57 L Ed 2d 631 : 438 US 104
(1978); Village of Belle Terre v. Bruce Boraas, 39 L
Ed 2d 797 : 416 US 1 (1974); Village of
Euclid v. Ambler Realty Company, 272 US 365
(1926); Halsey v. Esso Petroleum Co. Ltd., (1961)
1 WLR 683].
26. In Agins v. City of Tiburon [447 US 255
(1980)] , the Supreme Court of the United States
upheld a zoning ordinance which provided '... it is
in the public interest to avoid unnecessary
conversion of open space land to strictly urban
uses, thereby protecting against the resultant
impacts, such as .... pollution, .... destruction of
scenic beauty, disturbance of the ecology and the
environment, hazards related to geology, fire and
flood, and other demonstrated consequences of
urban sprawl'. Upholding the ordinance, the
Court said : (US pp. 261-62)
"... The State of California has
determined that the development of
local open-space plans will discourage
the 'premature and unnecessary
conversion of open-space land to urban
uses'.... The specific zoning regulations
at issue are exercises of the city's police
power to protect the residents of
Tiburon from the ill effects of
urbanization. Such governmental
purposes long have been recognized as
legitimate .... ... The zoning ordinances
benefit the appellants as well as the
public by serving the city's interest in
assuring careful and orderly
development of residential property with
provision for open-space areas." [See
comments on this decision by Thomas
J. Schoenbaum, Environmental Policy
Law, (1985) p. 438 et seq. See also
Summary and Comments, (1980) 10
ELR 10125 et seq.]
27. The statutes in force in India and abroad
reserving open spaces for parks and playgrounds
are the legislative attempt to eliminate the misery
of disreputable housing condition caused by
urbanisation. Crowded urban areas tend to
spread disease, crime and immorality. As stated
by the U.S. Supreme Court in Samuel
Berman v. Andrew Parker [99 L Ed 27 : 348 US
26] : (L Ed pp. 37-38 : US pp. 32-33)
"... They may also suffocate the spirit by
reducing the people who live there to
the status of cattle. They may indeed
make living an almost insufferable
burden. They may also be an ugly sore,
a blight on the community which robs it
of charm, which makes it a place from
which men turn. The misery of housing
may despoil a community as an open
sewer may ruin a river.
... The concept of the public welfare is
broad and inclusive .... The values it
represents are spiritual as well as
physical, aesthetic as well as monetary.
It is within the power of the legislature
to determine that the community
should be beautiful as well as healthy,
spacious as well as clean, well-balanced
as well as carefully patrolled. In the
present case, the Congress and its
authorized agencies have made
determinations that take into account a
wide variety of values ...." (Per Douglas,
J.).
28. Any reasonable legislative attempt
bearing a rational relationship to a permissible
State objective in economic and social planning
will be respected by the courts. A duly approved
scheme prepared in accordance with the
provisions of the Act is a legitimate attempt on
the part of the government and the statutory
authorities to ensure a quiet place free of dust
and din where children can run about and the
aged and the infirm can rest, breathe fresh air
and enjoy the beauty of nature. These provisions
are meant to guarantee a quiet and healthy
atmosphere to suit family needs of persons of all
stations. Any action which tends to defeat that
object is invalid. As stated by the U.S. Supreme
Court in Village of Belle Terre v. Bruce Boraas [39
L Ed 2d 797 : 416 US 1] : (L Ed p. 804 : US p. 9)
"... The police power is not confined to
elimination of filth, stench, and
unhealthy places. It is ample to lay out
zones where family values, youth
values, and the blessings of quiet
seclusion and clean air make the area a
sanctuary for people."
See also Village of Euclid v. Ambler Realty
Company [272 US 365 (1926)]. See the decision of
the Andhra Pradesh High Court in T. Damodhar
Rao v. Special Officer, Municipal Corporation of
Hyderabad [AIR 1987 AP 171].
29. The residents of the locality are the
persons intimately, vitally and adversely affected
by any action of the BDA and the government
which is destructive of the environment and
which deprives them of facilities reserved for the
enjoyment and protection of the health of the
public at large. The residents of the locality, such
as the writ petitioners, are naturally aggrieved by
the impugned orders and they have, therefore,
the necessary locus standi.
35. In Dr. G.N.Khajuria (supra), the Hon'ble Supreme
Court held that the land reserved for park in a residential
colony cannot be allotted for nursery school.
36. In M.I.Builders Private Limited (supra), the validity
of the decision of Lucknow Mahanagar Palika in granting
permission to a builder to construct an underground
shopping complex in a park at Lucknow was examined.
The Hon'ble Supreme Court held that Public Trust Doctrine
applies to public property and has grown from Article 21 of
the Constitution of India. In paras 51 and 52, it was held
as under:
51. In the treatise Environmental Law and
Policy: Nature, Law, and Society by Plater Abrams
Goldfarb (American Casebook Series, 1992) under
the Chapter on Fundamental Environmental
Rights, in Section 1 (The Modern Rediscovery of
the Public Trust Doctrine) it has been noticed that
"long ago there developed in the law of the Roman
Empire a legal theory known as the 'doctrine of
the public trust' ". In America public trust
doctrine was applied to public properties, such as
shore lands and parks. As to how that doctrine
works it was stated:
"The scattered evidence, taken together,
suggests that the idea of a public
trusteeship rests upon three related
principles. First, that certain interests
'like the air and the sea' have such
importance to the citizenry as a whole
that it would be unwise to make them
the subject of private ownership.
Second, that they partake so much of
the bounty of nature, rather than of
individual enterprise, that they should
be made freely available to the entire
citizenry without regard to economic
status. And, finally, that it is the
principal purpose of a Government to
promote the interests of the general
public rather than to redistribute public
goods from broad public uses to
restricted private benefit...."
With reference to a decision in Illinois Central
Railroad Co. v. Illinois [146 US 387 : 36 L Ed 1018
(1892)] it was stated that
"the Court articulated in that case the
principle that has become the central
substantive thought in public trust
litigation. When a State holds a
resource which is available for the free
use of the general public, a court will
look with considerable scepticism upon
any governmental conduct which is
calculated either to reallocate the
resource to more restricted uses or to
subject public uses to the self-interest
of private parties".
This public trust doctrine in our country, it would
appear, has grown from Article 21 of the
Constitution.
52. Thus by allowing construction of
underground shopping complex in the park the
Mahapalika has violated not only Section 114 of
the Act but also the public trust doctrine.
37. In Dipak Kumar Mukherjee (supra), the Hon'ble
Supreme Court noticed that menace of illegal and
unauthorized construction of buildings and structures in
different parts of the country has acquired monstrous
proportion. Paras 8 and 9 of the aforesaid decision are
extracted below for the facility of reference:
8. What needs to be emphasised is that
illegal and unauthorised constructions of
buildings and other structures not only violate
the municipal laws and the concept of planned
development of the particular area but also affect
various fundamental and constitutional rights of
other persons. The common man feels cheated
when he finds that those making illegal and
unauthorised constructions are supported by the
people entrusted with the duty of preparing and
executing master plan/development plan/zonal
plan. The reports of demolition of hutments and
jhuggi jhopris belonging to the poor and
disadvantaged section of the society frequently
appear in the print media but one seldom gets to
read about demolition of illegally/unauthorisedly
constructed multi-storeyed structures raised by
economically affluent people. The failure of the
State apparatus to take prompt action to
demolish such illegal constructions has
convinced the citizens that planning laws are
enforced only against poor and all compromises
are made by the State machinery when it is
required to deal with those who have money
power or unholy nexus with the power corridors.
9. We have prefaced disposal of this appeal
by taking cognizance of the precedents in which
this Court held that there should be no judicial
tolerance of illegal and unauthorised
constructions by those who treat the law to be
their subservient, but are happy to note that the
functionaries and officers of Kolkata Municipal
Corporation (for short "the Corporation") have
been extremely vigilant and taken steps for
enforcing the provisions of the Calcutta Municipal
Corporation Act, 1980 (for short "the 1980 Act")
and the Rules framed thereunder for demolition
of illegal construction raised by Respondent 7.
This has given a ray of hope to the residents of
Kolkata that there will be zero tolerance against
illegal and unauthorised constructions and those
indulging in such activities will not be spared.
38. In Lal Bahadur v. State of Uttar Pradesh 9, the
Hon'ble Supreme Court dealt with the issue whether an
area which is earmarked as greenbelt/open spaces in a
development plan could be reserved for development of
residential colonies. It was held that it is the duty of the
Government and the Court to protect the environment. The
principles laid down in Bangalore Medical Trust (supra)
were referred to with approval. The subsequent decision in
M.C.Mehta v. Kamal Nath 10 was taken note of and the
observation made therein that "public has a right to expect
certain lands and natural areas to retain their natural
characteristics in finding its way into the law of the land",
was mentioned. The Hon'ble Supreme Court held that
change of use of area in question from greenbelt to
residential one is contrary to the public trust doctrine. It
was further held that the land in future shall be used for
the purposes of park only.
9 (2018) 15 SCC 407
10 (1997) 1 SCC 388
39. In M.C.Mehta v. Kamal Nath (supra), the Hon'ble
Supreme court in paragraphs 24 and 25 held as under:
24. The ancient Roman Empire developed a
legal theory known as the "Doctrine of the Public
Trust". It was founded on the ideas that certain
common properties such as rivers, seashore,
forests and the air were held by Government in
trusteeship for the free and unimpeded use of the
general public. Our contemporary concern about
"the environment" bear a very close conceptual
relationship to this legal doctrine. Under the
Roman law these resources were either owned by
no one (res nullious) or by everyone in common
(res communious). Under the English common
law, however, the Sovereign could own these
resources but the ownership was limited in
nature, the Crown could not grant these
properties to private owners if the effect was to
interfere with the public interests in navigation or
fishing. Resources that were suitable for these
uses were deemed to be held in trust by the
Crown for the benefit of the public. Joseph L.
Sax, Professor of Law, University of Michigan --
proponent of the Modern Public Trust Doctrine --
in an erudite article "Public Trust Doctrine in
Natural Resource Law : Effective Judicial
Intervention", Michigan Law Review, Vol. 68,
Part 1 p. 473, has given the historical
background of the Public Trust Doctrine as
under:
"The source of modern public trust
law is found in a concept that received
much attention in Roman and English
law -- the nature of property rights in
rivers, the sea, and the seashore. That
history has been given considerable
attention in the legal literature, need
not be repeated in detail here. But two
points should be emphasized. First,
certain interests, such as navigation
and fishing, were sought to be preserved
for the benefit of the public; accordingly,
property used for those purposes was
distinguished from general public
property which the sovereign could
routinely grant to private owners.
Second, while it was understood that in
certain common properties -- such as
the seashore, highways, and running
water -- 'perpetual use was dedicated to
the public', it has never been clear
whether the public had an enforceable
right to prevent infringement of those
interests. Although the State apparently
did protect public uses, no evidence is
available that public rights could be
legally asserted against a recalcitrant
government."
25. The Public Trust Doctrine primarily rests
on the principle that certain resources like air,
sea, waters and the forests have such a great
importance to the people as a whole that it would
be wholly unjustified to make them a subject of
private ownership. The said resources being a gift
of nature, they should be made freely available to
everyone irrespective of the status in life. The
doctrine enjoins upon the Government to protect
the resources for the enjoyment of the general
public rather than to permit their use for private
ownership or commercial purposes. According to
Professor Sax the Public Trust Doctrine imposes
the following restrictions on governmental
authority:
"Three types of restrictions on
governmental authority are often
thought to be imposed by the public
trust: first, the property subject to the
trust must not only be used for a public
purpose, but it must be held available
for use by the general public; second,
the property may not be sold, even for a
fair cash equivalent; and third the
property must be maintained for
particular types of uses."
40. In Kerala State Coastal Zone Management
Authority (supra), construction activity was undertaken on
a part of tidal land which included a water body. The
Hon'ble Supreme Court held that permission granted by
gram panchayat was illegal and void and no development
activity could have been undertaken in prohibited zone.
41. In Municipal Corporation of Greater Mumbai v.
Hiraman Sitaram Deorukhar11, it was held that once an
11 (2019) 14 SCC 411
area is reserved as guardian in development plan cannot be
converted for any other use. The previous decision of
Hon'ble Supreme Court in Bangalore Medical Trust
(supra) was quoted with approval and in paras 7 and 8, it
was held as under:
7. This Court has laid down that public
interest requires some areas to be preserved by
means of open spaces of parks and playgrounds,
and that there cannot be any change or action
contrary to legislative intent, as that would be an
abuse of statutory powers vested in the
authorities. Once the area had been reserved, the
authorities are bound to take steps to preserve it
in that method and manner only. These spaces
are meant for the common man, and there is a
duty cast upon the authorities to preserve such
spaces. Such matters are of great public concern
and vital interest to be taken care of in the
development scheme. The public interest requires
not only reservation but also preservation of such
parks and open spaces. In our opinion, such
spaces cannot be permitted, by an action or
inaction or otherwise, to be converted for some
other purpose, and no development contrary to
plan can be permitted.
8. The importance of open spaces for parks
and playgrounds is of universal recognition, and
reservation for such places in development
scheme is a legitimate exercise of statutory power,
with the rationale of protection of the
environment and of reducing ill effects of
urbanisation. It is in the public interest to avoid
unnecessary conversion of "open spaces land" to
strictly urban uses, for gardens provide fresh air,
thereby protecting against the resultant impacts
of urbanisation, such as pollution, etc. Once such
a scheme had been prepared in accordance with
the provisions of the MRTP Act, by inaction
legislative intent could not be permitted to
become a statutory mockery. The government
authorities and officers were bound to preserve it
and to take all steps envisaged for protection.
42. In Supertech Limited v. Emerald Court Owner
Resident Welfare Association 12, the Hon'ble Supreme
Court held that breach by the planning authority of its
obligation to ensure compliance with building regulation is
actionable at the instance of residents whose rights are
infringed by violation of law. In paras 159, 161 to 164, 168
and 169 it was held as under:
12 (2021) 10 SCC 1
159. The rampant increase in unauthorised
constructions across urban areas, particularly in
metropolitan cities where soaring values of land
place a premium on dubious dealings has been
noticed in several decisions of this Court. This
state of affairs has often come to pass in no small
a measure because of the collusion between
developers and planning authorities.
161. The judgments of this Court spanning the
last four decades emphasise the duty of planning
bodies, while sanctioning building plans and
enforcing building regulations and bye-laws to
conform to the norms by which they are
governed. A breach by the planning authority of
its obligation to ensure compliance with building
regulations is actionable at the instance of
residents whose rights are infringed by the
violation of law. Their quality of life is directly
affected by the failure of the planning authority to
enforce compliance. Unfortunately, the diverse
and unseen group of flat buyers suffers the
impact of the unholy nexus between builders and
planners. Their quality of life is affected the most.
Yet, confronted with the economic might of
developers and the might of legal authority
wielded by planning bodies, the few who raise
their voices have to pursue a long and expensive
battle for rights with little certainty of outcomes.
As this case demonstrates, they are denied access
to information and are victims of misinformation.
Hence, the law must step in to protect their
legitimate concerns.
162. In K. Ramadas Shenoy v. Town Municipal
Council, Udipi [K. Ramadas Shenoy v. Town
Municipal Council, Udipi, (1974) 2 SCC 506] , A.N.
Ray, C.J. speaking for a two-Judge Bench of this
Court observed that the municipality functions
for public benefit and when it "acts in excess of
the powers conferred by the Act or abuses those
powers then in those cases it is not exercising its
jurisdiction irregularly or wrongly but it is
usurping powers which it does not possess". This
Court also held : (SCC p. 513, para 27)
"27.... The right to build on his own
land is a right incidental to the
ownership of that land. Within the
Municipality the exercise of that right
has been regulated in the interest of the
community residing within the limits of
the Municipal Committee. If under
pretence of any authority which the law
does give to the Municipality it goes
beyond the line of its authority, and
infringes or violates the rights of others,
it becomes like all other individuals
amenable to the jurisdiction of the
courts. If sanction is given to build by
contravening a bye-law the jurisdiction
of the courts will be invoked on the
ground that the approval by an
authority of building plans which
contravene the bye-laws made by that
authority is illegal and inoperative. (See
Yabbicom v. R. [Yabbicom v. R., (1899) 1
QB 444] )."
This Court held that an unregulated construction
materially affects the right of enjoyment of
property by persons residing in a residential area,
and hence, it is the duty of the municipal
authority to ensure that the area is not adversely
affected by unauthorised construction.
163. These principles were re-affirmed by a two-
Judge Bench in G.N. Khajuria v. DDA [G.N.
Khajuria v. DDA, (1995) 5 SCC 762] where this
Court held that it was not open to the Delhi
Development Authority to carve out a space,
which was meant for a park for a nursery school.
B.L. Hansaria, J. speaking for the Court,
observed : (SCC p. 766, para 10)
"10. Before parting, we have an
observation to make. The same is that a
feeling is gathering ground that where
unauthorised constructions are
demolished on the force of the order of
courts, the illegality is not taken care of
fully inasmuch as the officers of the
statutory body who had allowed the
unauthorised construction to be made
or make illegal allotments go scot free.
This should not, however, have
happened for two reasons. First, it is
the illegal action/order of the officer
which lies at the root of the unlawful act
of the citizen concerned, because of
which the officer is more to be blamed
than the recipient of the illegal benefit.
It is thus imperative, according to us,
that while undoing the mischief which
would require the demolition of the
unauthorised construction, the
delinquent officer has also to be
punished in accordance with law. This,
however, seldom happens. Secondly, to
take care of the injustice completely, the
officer who had misused his power has
also to be properly punished. Otherwise,
what happens is that the officer, who
made the hay when the sun shined (sic),
retains the hay, which tempts others to
do the same. This really gives fillip to
the commission of tainted acts, whereas
the aim should be opposite."
164. In Friends Colony Development
Committee v. State of Orissa [Friends Colony
Development Committee v. State of Orissa, (2004)
8 SCC 733], this Court dealt with a case where
the builder had exceeded the permissible
construction under the sanctioned plan and had
constructed an additional floor on the building,
which was unauthorised. R.C. Lahoti, C.J.,
speaking for a two-Judge Bench, observed : (SCC
p. 744, para 24)
"24. Structural and lot area regulations
authorise the municipal authorities to
regulate and restrict the height, number
of storeys and other structures; the
percentage of a plot that may be
occupied; the size of yards, courts and
open spaces; the density of population;
and the location and use of buildings
and structures. All these have in our
view and do achieve the larger purpose
of the public health, safety or general
welfare. So are front setback provisions,
average alignments and structural
alterations. Any violation of zoning and
regulation laws takes the toll in terms of
public welfare and convenience being
sacrificed apart from the risk,
inconvenience and hardship which is
posed to the occupants of the building."
Noting that the private interest of landowners
stands subordinate to the public good while
enforcing building and municipal regulations, the
Court issued a caution against the tendency to
compound violations of building regulations :
(Friends Colony Development Committee
case [Friends Colony Development
Committee v. State of Orissa, (2004) 8 SCC 733] ,
SCC p. 744, para 25)
"25. ... The cases of professional
builders stand on a different footing
from an individual constructing his own
building. A professional builder is
supposed to understand the laws better
and deviations by such builders can
safely be assumed to be deliberate and
done with the intention of earning
profits and hence deserve to be dealt
with sternly so as to act as a deterrent
for future. It is common knowledge that
the builders enter into underhand
dealings. Be that as it may, the State
Governments should think of levying
heavy penalties on such builders and
therefrom develop a welfare fund which
can be utilised for compensating and
rehabilitating such innocent or unwary
buyers who are displaced on account of
demolition of illegal constructions."
168. Finally, the Court also observed that no case
has been made out for directing the municipal
corporation to regularise a construction which
has been made in violation of the sanctioned plan
and cautioned against doing so. In that context, it
held : (Esha Ekta Apartments case [Esha Ekta
Apartments Coop. Housing Society
Ltd. v. Municipal Corpn. of Mumbai, (2013) 5 SCC
357 : (2013) 3 SCC (Civ) 89] , SCC pp. 394-95,
para 56)
"56. ... We would like to reiterate that
no authority administering municipal
laws and other similar laws can
encourage violation of the sanctioned
plan. The courts are also expected to
refrain from exercising equitable
jurisdiction for regularisation of illegal
and unauthorised constructions else it
would encourage violators of the
planning laws and destroy the very idea
and concept of planned development of
urban as well as rural areas."
169. These concerns have been reiterated in the
more recent decisions of this Court in Kerala
State Coastal Zone Management Authority v. State
of Kerala [Kerala State Coastal Zone Management
Authority v. State of Kerala, (2019) 7 SCC 248],
Kerala State Coastal Zone Management
Authority v. Maradu Municipality [Kerala State
Coastal Zone Management Authority v. Maradu
Municipality, (2021) 16 SCC 822 : 2018 SCC
OnLine SC 3352] and Bikram Chatterji v. Union of
India [Bikram Chatterji v. Union of India, (2019) 19
SCC 161] .
43. The Hon'ble Supreme Court held that illegal
constructions have to be dealt with strictly to ensure
compliance with rule of law. The Hon'ble Supreme Court,
therefore, directed demolition of illegal structures. The
Public Trust Doctrine in M.C.Mehta vs. Kamal Nath (supra)
was reiterated with approval in T.N.Godavarman
Thirumulpad, in Re vs. Union of India 13.
(XI) SUMMARY:
44. From the aforesaid decisions, following propositions
emerge:
1) Protection of the environment, open spaces for
creation of fresh air, play grounds for children, promenade
for residents are matters of great public concern and of
vital interest to be taken care of in a development scheme.
(2022) 10 SCC 544
2) Reservation of open spaces for parks and
playgrounds is universally recognized as a legitimate
exercise of statutory power to protect residents of locality
from ill-effects of urbanization.
3) The Doctrine of Public Trust is founded on the
idea that certain common properties such as rivers,
seashore, forests and the air were held by the Government
in trusteeship for the free and unimpeded use of general
public.
4) The Public Trust Doctrine has grown from
Article 21 of the Constitution of India applies to public
properties. The Court will look at considerable skepticism
upon any conduct which is calculated either to reallocate
the resources to more restricted uses or to subject public
uses to the self interest of private parties.
5) Illegal and unauthorized constructions of
buildings and other structures not only violate municipal
laws and concept of planned development of a particular
area but also affect valuable fundamental and
constitutional rights of other persons.
6) There is a rampant increase in unauthorized
constructions across urban area and particularly in
metropolitan cities.
7) A breach by planning authority of its obligation
to ensure compliance with building regulations is
actionable at the instance of residents whose rights are
infringed by violation of laws.
8) Illegal constructions have to be dealt with
strictly to ensure rule of law.
(XII) ISSUES:
45. In these cases, the following issues arise for
consideration:
(i) Whether the competent authority has changed
the original layout plan?
(ii) Whether construction of shopping complex can
be permitted on an area earmarked as a park in
layout or development plan? and
(iii) The relief to which the petitioners are entitled?
Issue (i): Whether the competent authority has
changed the original layout plan?
46. The development plan or master plan can be
prepared and approved in accordance with Section 8 of the
1975 Act. In the light of mandate contained in Section 15
of the 1975 Act, no person can use or permit the use of the
land or building in a zone in contravention of the plan.
A modification to the plan can be made only by Hyderabad
Urban Development Authority under Section 12 of the
1975 Act, which is the competent authority to modify the
original development plan in the manner indicated under
Section 12(3) to 12(5) and Rule 13 of the 1977 Rules.
47. In paras 34 and 43 of the Report of the Enquiry
Officer dated 18.08.2001, which is submitted in pursuance
of the interim order dated 01.08.2000 passed in
W.P.No.12538 of 1999, it has been stated as under:
34. POINT
Practically there is no dispute with regard to
a fact that the site in dispute was earmarked for
park in the original/proposed layout. Ex.B.5 is
the sketch pertaining to the proposed layout plan
of the year 1984. This is the original plan. In this
plan, the disputed site is the original plan. In this
plan the disputed site is identified as 'ABCD' and
it is noted as "Park". As already noted it is
everybody's case that in the beginning i.e., in the
year 1984 proposed layout plan, the disputed site
was earmarked as "Park". It would not end with it
if I say that the site in dispute was earmarked for
a park in the year 1984 in the layout in question
in the light of the subsequent developments and
the contentions of the rival parties. I will discuss
the contentions and controversies in the
paragraphs to follow.
43. Let me now briefly discuss on Ex.B.47,
the original of Ex.B.1 which is the vital and
important document that would dispel the doubts
in the minds of everybody. Ex.B.2 in Ex.B.1
which R.W.1 claims to be an interpolation, is also
found in Ex.B47. Further, the disputed site is
identified as S1 and S2 shops. There is no
mention of the word 'park'. Nowhere it is stated in
this revised sketch that the disputed site has
been earmarked for park even after revision of the
layout dated 10.04.1987. As already noted that if
there were to be any tampering, R.W.1 or as a
matter of fact, the two writ petitioners could have
pleaded and placed material in evidence of the
same. None of them attribute anything against
any of the individuals or authority in the above
regard. The APHB who is the custodian of Ex.B47
failed to plead or prove that there was no revision
in the year 1987 or that the words "S1 & S2
shops" have been subsequently interpolated by
deleting the word 'park' at the disputed site. This
Court really wonders as to how the APHB, the
custodian of Ex.B.47 could themselves come out
with a case that there were interpolations and
tampering. The burden is very heavy on them to
substantiate their allegations. However, they
miserably failed to prove the same. This is
unbecoming of a responsible institution and
authority to give such a statement that the
document in their custody was tampered with. It
is significant to note that they did not come out
with such a complaint on their own. None of their
engineers could record or bring it to the notice of
the higher ups about the alleged tampering at any
point of time. For the first time they are coming
out with such a case when they had to file the
counter before the High Court in connection with
these writ petitions. As already noted, the APHB
as well as the petitioners miserably failed to prove
that there was tampering with the Ex.B.47 plan.
However, my opinion would not come in the way
of the APHB authorities to probe into the matter
and arrive at a 'just' conclusion as to whether
there was any tampering or not by entrusting the
matter to any investigating agency.
48. Thus, it is evident that the Enquiry Officer has found
that area in dispute is earmarked as park in the original
layout. However, the Enquiry Officer in para 43 himself has
concluded that Housing Board Authorities can probe into
the matter and arrive at a just conclusion as to whether
there was any tampering or not by entrusting the matter to
any investigation agency. Thus, the Enquiry Officer has not
attached any finality to the finding of tampering. Therefore,
the Report of the Enquiry Officer is of no assistance.
49. The stand of APHB, as is evident from paras 10 and
11 of the counter affidavit and counter affidavit dated
10.11.2003 filed in S.L.P. No.21351-52 and paras 5 to 12
and para 22 of material papers filed along with
W.P.M.P.No.10336 of 2007, with regard to modification of
the plan can be summarized as under:
(i) In the layout sanctioned by Hyderabad Urban
Development Authority, the area is earmarked for purposes
of park.
(ii) The words "shops S1 and S2" are interpolated in a
layout drawn on pressing paper and same is neither correct
nor approved by APHB or HUDA on 10.04.1987.
50. From perusal of the averments made by Municipal
Corporation of Hyderabad in the counter affidavit as well as
the common counter filed in S.L.P. (Civil) Nos.21351 and
21352 of 2001, it is evident as follows:
(i) The permission for construction was accorded on
the basis of document submitted by respondent No.1.
(ii) The permission contained a condition that if at a
later date, it is found that land is reserved for purposes of
park, the building permission shall be cancelled
automatically.
(iii) The APHB is only a development agency and does
not have any power to revise the layout without approval of
HUDA.
51. The competent authority, namely HUDA in the
counter affidavit in para 2 filed in W.P.No.12538 of 1999
has averred as under:
2. In the above writ petition, HUDA made as
respondent No.3. The prayer in the writ petition is
for a direction declaring the action of respondents
1 to 4 in permitting respondents 5 to 6 to
construct commercial complex in land
admeasuring 600 square yards in plot Nos. S.1
and S.4 in Indian Airlines Housing Colony in
Sy.No.194/11, Begumpet Village, R.R.District as
illegal, arbitrary and violative of Articles 14 and
21 of the Constitution of India and consequently
directed respondents 3 and 4 to lay public park in
the land as per sanction layout. It is submitted
that after perused the petitioner affidavit, it is
observed that the site under reference is
earmarked as park in the sanctioned layout
which is in favour of Indian Airlines Housing
Colony at Begumpet. As this area falls within the
jurisdiction of M.C.H. and the Commissioner and
Special Officer, M.C.H is the competent authority
to permit any building within the jurisdiction and
also to take any action on the buildings which are
constructed against the rules and regulations. It
is submitted that the site under reference is a
park and the M.C.H is the custodian of the areas
earmarked as open space (park) within the
layouts and as such there is no role of HUDA to
initiate any action against violation/unauthorized
constructions taken place within the jurisdiction
of M.C.H. area.
Thus, it is evident that the stand of competent authority
about modification of the layout plan is that the area in
question is earmarked for the purposes of park in
sanctioned layout.
52. Thus, it is evident that the competent authority
namely HUDA has not changed the original layout plan. In
any case, the respondent Nos.5 to 8 have not been able to
establish that the plan was modified in accordance with the
procedure prescribed under Section 12(3) and 12(4) of the
1975 Act and in accordance with Rules 12 and 13 of the
1977 Rules. Therefore, the issue (i) is answered in the
negative by stating that the competent authority has not
changed the original layout plan.
Issue (ii): Whether construction of shopping complex
can be permitted on an area earmarked as a park in
layout or development plan?
53. The Hon'ble Supreme Court in catena of decisions
referred to supra has held that the planning authority is
under an obligation to ensure development of the land in
accordance with the development plan. In the instant
cases, Section 15 of the 1975 Act casts a duty on the
person not to use the land and building in contravention of
the plan and provides for levy of penalty, including an
order of demolition of building under Sections 41 and 42 of
the 1975 Act. Therefore, it is axiomatic that the
construction of shopping complex cannot be permitted in
an area which is earmarked as a park. Accordingly, the
issue (ii) is also answered in the negative by stating that
construction of shopping complex cannot be permitted on
an area which is earmarked as a park.
Issue (iii): The relief to which the petitioners are
entitled?
54. In S.R.Ramanujam v. Chief Secretary 14, a Division
Bench of this Court in para 14 held as under:
14. None of the respondents have been able
to dispute the averment on behalf of the
petitioners and interveners that the City's parks
and other open spaces are hopelessly inadequate
as per the standard in this behalf. The expanding
urban agglomeration of the twin cities of
Hyderabad and Secunderabad and the per capita
recreational area in the city is less than 0.50
square metres as against the national standard of
3.00 square metres. The city is already breathing
less than the required breath and further
depletions by acts of the State of the lung space
of the city will make the breathing more difficult.
Although in the counter affidavits respondents
have chosen to assert that while deciding to hold
cremations, of course only in the case of late Dr.
Channa Reddy and that also after protests were
raised and this Court called upon the learned
Advocate General to file a Memo in this behalf,
they took the cause of environment into
consideration and satisfied themselves that there
was no likelihood of ecology being affected, the
manner in which they have proceeded and the
14 1997 (2) ALT 512
hurry in which the decision has been taken,
make us doubt the sincerity behind such
statements. The Commissioner has acknowledged
the influence of the decision of the Government of
the State in his issuing orders and has thus
admitted that his decision making in this behalf
was influenced by the decision of the Government
and the communications made by the
Government to it. One of the settled principles of
law is that if a person, who is empowered to
decide a matter and in deciding the matter, takes
into consideration irrelevant materials, he acts
mala fide in law. The whole episode is so full of
malice almost at every stage of decision making
that everything that has been done with respect
to the use of the parks as cremation grounds
(according to the Commissioner's affidavit as a
special case and as one time decision in the case
of Dr. Channa Reddy) is without jurisdiction in all
respects. The Government of the State has acted
without any legal sanction and interfered with the
constitutional and statutory power of the self-
government and the Commissioner of the
Corporation. The Commissioner of the
Corporation has abdicated his jurisdiction and
surrendered the self- government to the
command of the State Government. A ruthless
interference in the public interest by the welfare
Governments, both the State Government and the
self-government, has left the citizens shocked and
alarmed. When they have invoked the
extraordinary jurisdiction of this Court under
Article 226 of the Constitution of India, will the
Court fall in line with the Government or stand to
the public interest? We have no hesitation, on the
facts as aforementioned, to hold that the
Government of the State has gone against the
public interest in being influenced by the
emotions and sentiments of people whose
honoured leaders had died and failed in discharge
of its sovereign duty assigned to it by the
Constitution of India and gone beyond its powers
under the Corporation Act. The rights of the
petitioners and others similarly situated, of equal
protection of law and equality before law are
violated by the above interference in the matter
by the State Government. Their right under
Article 21 of the Constitution is violated, at least,
in not taking into account the fact that any
conversion of any open space of the city, which is
available for public recreation, into any cremation
ground or memorial, shall further reduce the
open space in the city and thus violate the right
under Article 21 of the Constitution of India.
Corporation's failure in preventing the cremation
of late Sri N.T. Rama Rao in one of the parks of
the city and in not taking any action to remove
any encroachments by any person including the
Government of the State upon the lands
belonging to the park, are glaring violations of
Articles 14 and 21 of the Constitution of India
and the provisions with respect to disposal of the
dead in the Corporation Act. Repetition of the
above for the cremation of the dead body of late
Dr. Channa Reddy by the Government of the
State and abdication of jurisdiction by the
Commissioner and the Corporation is a repeat of
the violation of the right of the petitioners as
above.
Thus, the need to establish and maintain parks in the city
of Hyderabad and Secunderabad does not need any
emphasis.
55. The protection of environment is a duty cast on
administration as well as the Court. The Hon'ble Supreme
Court in Supertech Limited (supra) has held that inaction
of the planning authorities of its obligation to ensure
development of land in accordance with the plan results in
infraction of the rights of the residents and their quality of
life is directly affected. The decision of Hon'ble Supreme
Court in Priyanka Estates International Private Limited
v. State of Assam 15 was taken note of in Supertech
Limited (supra). In paras 165, 166, 167 and 172, the
Hon'ble Supreme Court held as under:
165. In Priyanka Estates International (P)
Ltd. v. State of Assam [Priyanka Estates
International (P) Ltd. v. State of Assam, (2010) 2
SCC 27 : (2010) 1 SCC (Civ) 283] , Deepak Verma,
J. speaking for a two-Judge Bench, observed :
(SCC p. 42, para 55)
"55. It is a matter of common knowledge
that illegal and unauthorised
constructions beyond the sanctioned
plans are on rise, may be due to paucity
of land in big cities. Such activities are
required to be dealt with by firm hands
otherwise builders/colonisers would
continue to build or construct beyond
the sanctioned and approved plans and
would still go scot-free. Ultimately, it is
the flat owners who fall prey to such
activities as the ultimate desire of a
common man is to have a shelter of his
own. Such unlawful constructions are
definitely against the public interest and
hazardous to the safety of occupiers and
residents of multi-storeyed buildings. To
some extent both parties can be said to
be equally responsible for this. Still the
greater loss would be of those flat
owners whose flats are to be demolished
as compared to the builder."
The Court lamented that the earlier decisions on
the subject had not resulted in enhancing
15 (2010) 2 SCC 27
compliance by developers with building
regulations. Further, the Court noted that if
unauthorised constructions were allowed to stand
or are "given a seal of approval by Court", it was
bound to affect the public at large. It also noted
that the jurisdiction and power of courts to
indemnify citizens who are affected by an
unauthorised construction erected by a developer
could be utilised to compensate ordinary citizens.
166. In Esha Ekta Apartments Coop. Housing
Society Ltd. v. Municipal Corpn. of Mumbai [Esha
Ekta Apartments Coop. Housing Society
Ltd. v. Municipal Corpn. of Mumbai, (2013) 5 SCC
357 : (2013) 3 SCC (Civ) 89] , G.S. Singhvi, J.,
writing for a two-Judge Bench, reiterated the
earlier decisions on this subject and observed :
(SCC p. 369, para 8)
"8. At the outset, we would like to
observe that by rejecting the prayer for
regularisation of the floors constructed
in wanton violation of the sanctioned
plan, the Deputy Chief Engineer and the
appellate authority have demonstrated
their determination to ensure planned
development of the commercial capital
of the country and the orders passed by
them have given a hope to the law-
abiding citizens that someone in the
hierarchy of administration will not
allow unscrupulous developers/builders
to take law into their hands and get
away with it."
167. The Court further observed that an
unauthorised construction destroys the concept
of planned development, and places an
unbearable burden on basic amenities provided
by public authorities. The Court held that it was
imperative for the public authority to not only
demolish such constructions but also to impose a
penalty on the wrongdoers involved. This lament
of this Court, over the brazen violation of building
regulations by developers acting in collusion with
planning bodies, was brought to the forefront
when the Court prefaced its judgment with the
following observations : (Esha Ekta Apartments
case [Esha Ekta Apartments Coop. Housing
Society Ltd. v. Municipal Corpn. of Mumbai, (2013)
5 SCC 357 : (2013) 3 SCC (Civ) 89] , SCC p. 363,
para 1)
"1. In the last five decades, the
provisions contained in various
municipal laws for planned development
of the areas to which such laws are
applicable have been violated with
impunity in all the cities, big or small,
and those entrusted with the task of
ensuring implementation of the master
plan, etc. have miserably failed to
perform their duties. It is highly
regrettable that this is so despite the
fact that this Court has, keeping in view
the imperatives of preserving the
ecology and environment of the area
and protecting the rights of the citizens,
repeatedly cautioned the authorities
concerned against arbitrary
regularisation of illegal constructions by
way of compounding and otherwise."
172. For the reasons which we have indicated
above, we have come to the conclusion that:
172.1. The order [Emerald Court Owner
Resident Welfare Assn. v. State of U.P., 2014 SCC
OnLine All 14817] passed by the High Court for
the demolition of Apex and Ceyane (T-16 and T-
17) does not warrant interference and the
direction for demolition issued by the High Court
is affirmed.
172.2. The work of demolition shall be carried
out within a period of three months from the date
of this judgment.
172.3. The work of demolition shall be carried
out by the appellant at its own cost under the
supervision of the officials of Noida. In order to
ensure that the work of demolition is carried out
in a safe manner without affecting the existing
buildings, Noida shall consult its own experts and
experts from Central Building Research Institute
Roorkee ("CBRI").
172.4. The work of demolition shall be carried
out under the overall supervision of CBRI. In the
event that CBRI expresses its inability to do so,
another expert agency shall be nominated by
Noida.
172.5. The cost of demolition and all
incidental expenses including the fees payable to
the experts shall be borne by the appellant.
172.6. The appellant shall within a period of
two months refund to all existing flat purchasers
in Apex and Ceyane (T-16 and T-17), other than
those to whom refunds have already been made,
all the amounts invested for the allotted flats
together with interest at the rate of twelve per
cent per annum payable with effect from the date
of the respective deposits until the date of refund
in terms of Part H of this judgment.
172.7. The appellant shall pay to the RWA
costs quantified at Rs 2 crores, to be paid in one
month from the receipt of this judgment.
56. The Hon'ble Supreme Court upheld the directions of
the High Court including the order of demolition and of
sanctioning of prosecution under Section 49 of the
U.P.I.A.V. Act, 1976 against the officers of the Noida for
violation of U.P.I.A.V. Act, 1976 and U.P.Apartments Act,
2010.
57. In these cases, the respondent Nos.5 and 6 have
utilized the land in violation of its use as indicated in the
layout development plan. The area earmarked for the
purposes of park has been utilized by respondent Nos.5
and 6 for construction of a commercial complex which is
impermissible in law and is violative of rights guaranteed to
the petitioners who are residents of the locality. The
Hyderabad Urban Development Authority has failed to
discharge its statutory obligation to stop the unauthorised
development at the initial stage and thereafter have
derelicted their statutory duties in not imposing either any
penalty or ordering demolition of the unauthorized
construction, namely shopping complex.
58. Insofar as submission made on behalf of respondent
Nos.5 and 6 that in view of dismissal of previous writ
petition, namely W.P.No.17494 of 1997, vide order dated
01.10.1997, the instant writ petition cannot be maintained
is concerned, suffice it to say that aforesaid writ petition
was dismissed on the ground that the identity of the
petitioner therein was not established. Similarly,
W.P.No.2965 of 1998 was dismissed as withdrawn, vide
order dated 24.08.1998. Admittedly, there is no
adjudication of the issue on merits either in W.P.No.17494
of 1997 and W.P.No.2965 of 1998. In any case, petitioners
were neither parties in the said writ petitions nor the issue
was adjudicated on merits. Therefore, the aforesaid orders
have no application to the fact situation of these cases.
(XIII) DIRECTIONS:
59. In view of preceding analysis, the following directions
are issued:
(i) Permit No.50/49 of 1996 dated 03.01.1997
granted in favour of Indian Airlines Employees Housing
Society by the Municipal Corporation of Hyderabad in File
No.10/TP7/CCP/96 for construction of commercial
complex on the land reserved for park in survey
No.194/11, Paigah Lands, Begumpet, Ranga Reddy
District, is set aside and quashed.
(ii) The respondent Nos.5 and 6 in W.P.No.12538 of
1999 (Mr. P.Ravi Kumar and Mr. M.F.Peter) are directed to
carry out the work of demolition of commercial complex
constructed on land measuring 600 square yards in survey
No.194/11 in plot Nos.S1 and S2 in Indian Airlines
Housing Colony, Begumpet, Ranga Reddy District.
(iii) The aforesaid demolition work shall be carried
out by respondent Nos.5 and 6 in W.P.No.12538 of 1999 at
their own cost under the supervision of officials of
Telangana Housing Board and Hyderabad Metropolitan
Development Authority (HMDA).
(iv) The Hyderabad Metropolitan Development
Authority (HMDA) shall nominate an expert under whose
overall supervision the demolition work shall be carried out
by respondent Nos.5 and 6 in W.P.No.12538 of 1999.
(v) The entire expenses including the cost of
demolition and incidental expenses including the fee
payable to the expert nominated by the officials of HMDA
shall be borne by respondent Nos.5 and 6.
(vi) The respondent Nos.5 and 6 in W.P.No.12538 of
1999 shall carry out the demolition work within a period of
three months from the date of this order.
(vii) HMDA is directed to develop the land measuring
600 square yards in survey No.194/11 in plot Nos.S1 and
S2 in Indian Airlines Housing Colony, Begumpet, Ranga
Reddy District as a park, and
(viii) Needless to state that occupants, if any, of the
building shall be at liberty to take recourse to the remedy
available to them in law, with regard to their grievance
against respondent Nos.5 and 6 in W.P.No.12538 of 1999.
(XIV) CONCLUSION:
57. In the result, the writ petitions are allowed.
Miscellaneous applications, pending if any, shall
stand closed.
________________________
ALOK ARADHE, CJ
_____________________________
N.V.SHRAVAN KUMAR, J
04.10.2023
Note: LR copy to be marked.
(By order)
pln
