Telangana High Court
M/S. Fair Fields Plot Owners Welfare ... vs The Hyderabad Metropolitan ... on 4 March, 2025
Author: K. Lakshman
Bench: K. Lakshman
HON'BLE SRI JUSTICE K. LAKSHMAN
WRIT PETITION No.17797 of 2009
ORDER:
Heard Sri V. Gopal Rao Amanacharla,
learned counsel appearing for the petitioner,
Sri V. Narsimha Goud, learned Standing Counsel
appearing for respondent Nos.1 and 2, Sri Laxmaiah
Kanchani, learned Standing Counsel appearing for
respondent No.7. Perused the record.
2. Petitioner herein is a registered society registered
under the provisions of the Telangana Societies
Registration Act, 2001 vide registration No.1016 of 2009.
Owners of plots / houses/ villas are the members of the
petitioner's association.
3. M/s. Fair Fields, a company, developed land
admeasuring Ac.7-37 gts., in Sy.Nos.1 to 6, 15, 16 and
47P of Neknampur village, Rajendranagar Mandal on
obtaining permission No.16/MP/2/4/03 on 27.02.2003.
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It was for development of a gated community. The said
company developed layout as a gated community with
two model houses along with a room for the Welfare
Association in plot No.29, Sy.No.1 to 6, 15, 16 and 47P,
Neknampur village. The said lay out was fenced at the
time of approval by obtaining necessary permission. At
the time of approval by respondent No.1 - HMDA,
respondent No.1 has allocated certain areas for common
public utility such as park, septic tanks, overhead water
tank, garbage centers, etc., in the final layout. The
members of the petitioner society purchased plots from
the said company under valid registered sale deeds.
4. Respondent No.1 - HMDA informed respondent No.3
- the then Gram Panchayat, Neknampur about the
approval and the areas earmarked for the purpose of
common public utilities such as park, septic tank,
overhead water tank, garbage centers, etc. The said areas
earmarked are under the control and custody of
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respondent No.3 - the then Gram Panchayat, Neknampur
and the petitioner association since 2003.
5. It is further contended by the petitioner that the
Village Secretary in collusion with the Sarpanch of
Neknampur Grampanchyat is trying to encroach into the
common areas earmarked for the purpose of common
utility for the resident's welfare association and is trying
to create third party interest by alienating the same.
Therefore, they have submitted a representation dated
12.08.2008 to all the respondents with a request to stop
the said construction. They have not stopped the
construction. Therefore, petitioners have filed the present
writ petition to declare the action of respondent Nos.1 to
4 in not restraining respondent Nos.5 to 6 from
interfering and encroaching into the common utility
places earmarked for the purpose of petitioner's
association, as illegal and consequently direct the
respondents to remove the structures, if any, made in the
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said open place earmarked for the purpose of common
utility in the layout.
6. Respondent No.3 - Panchayat Secretary, the then
Gram Panchyat, Neknampur filed counter admitting
about the aforesaid layout issued by respondent No.1. It
is contended that basing on the approved layout by the
then HUDA, petitioner association has registered a gift
deed in respect of four open spaces in favour of
Neknampur Gram Panchayat, vide registered gift deed
bearing document No.9193 of 2003, dated 10.12.2003.
Thereafter, the HMDA released the said final layout. On
registration of the said gift deed, the common public
utility spaces, such as park, septic tanks, overhead water
tank, garbage centers, etc., are vested with the Gram
Panchayat. The petitioner has no right over the said
public places.
7. It is also contended that the Mandal Parishad,
Rajendra Nagar has proposed to construct Anganwadi
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building at Neknampur village. Accordingly, an amount of
Rs.3,00,000/- was sanctioned under the Mandal
Parishad Grants. Technical sanction was also issued by
the Executive Engineer, Panchayat Raj Department,
Hyderabad vide SDR.No.T6/2008, dated 04.11.2008. The
work was entrusted to Mr.D. Prathap Reddy, VLCP on
nomination basis as per the orders of the Mandal
Parishad Development Officer, Rajendranagar.
Accordingly, space which is earmarked for the purpose of
public utility has been identified and work has
commenced by the contractor. The construction is at the
slab level. Pursuant to the status quo orders granted by
this Court, construction has been stopped. Thus, the
petitioner has no locus to file the present writ petition
and the aforesaid construction of Anganwadi building is
for the public purpose. With the aforesaid contentions,
respondent No.3 sought to dismiss the present writ
petition.
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8. It is also relevant to note that the Gram Panchayat,
Neknampur was merged into Manikonda Municipality
i.e., respondent No.7 herein.
9. Respondent No.7 filed counter in the aforesaid lines.
It is further contended that except Anganwadi School
there are no encroachments as alleged in the writ
affidavit. Anganwadi School, is also for the benefit of
children of the local residents. The said building is
constructed for the public purpose. Therefore, the
petitioner has no locus to file the present writ petition.
With the said contentions, respondent No.3 sought to
dismiss the present writ petition.
10. Petitioner has filed reply to the counter filed by
respondent No.7 contending that respondent cannot
construct Anganwadi School in the open space
earmarked for the purpose of park within the petitioner's
layout. The same is illegal. It has also placed reliance on
the principle laid down by the Hon'ble Apex Court in
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Dr.G.N. Khajuria and others v. Delhi Development
Authority and others1, Anjuman E. Shiate Ali v.
Gulmohar Area Societies Welfare Group2 and also in
P. Venkateshwarlu and another v. Secretary,
Municipal Administration, Hyderabad and others
(unreported common order of a Division Bench of this Court
dated 04.10.2023 in W.P.Nos.12538 of 1999 and 25738 of
1997).
11. It is relevant to note that the petitioner association
has filed a Memo across the Bench along with resolution
of the association stating that the petitioner association
will use the said building for its activities.
12. The afore-stated facts would reveal that the subject
construction was made by the then Gram Panchayat i.e.,
respondent No.3 for the purpose of Anganwadi school. An
amount of Rs.3,00,000/- was sanctioned by the Mandal
Parishad, Rajendranagar. There was also technical
(1995) 5 SCC 762
AIR ONLINE 2020 SC 473
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sanction by the Executive Engineer, Panchayat Raj
Department, Hyderabad, on 04.11.2008. The
construction work was entrusted to Mr. D. Pradeep
Reddy, VLCP on nomination basis.
13. In the counter filed by respondent No.3, it is stated
that when the construction was at slab level, this Court
granted status quo orders. Therefore, construction has
been stopped. Petitioner has filed photographs of the
subject construction and perusal of the same would
reveal that the same was at slab level.
14. Whereas, respondent No.7 has filed counter along
with photographs to show that the building has been
completed and it is using for Anganwadi centre No.1.
Even in the counter filed by respondent No.7, it is stated
that construction has been completed and it is using for
the purpose of Anganwadi School, which is also a public
purpose. The said Anganwadi School is beneficial for the
children of local residents.
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15. Thus, the subject construction was completed in
violation of the status quo order granted by this Court on
26.08.2009. The afore-stated facts would reveal that
admittedly the subject building was constructed in the
space earmarked for the purpose of park.
16. In P. Venkateshwarlu and another v. Secretary,
Municipal Administration, Hyderabad and others
(unreported common order of a Division Bench of this Court
dated 04.10.2023 in W.P.Nos.12538 of 1999 and 25738 of
1997), on examination of the facts of the said case, where
600 square yards of land was earmarked for the purpose
of park, it was allotted for construction of commercial
building, permission was also accorded. Considering the
said aspects and also 'doctrine of public trust' and also
the principle laid down by the Hon'ble Apex Court in
several judgments, summarised proposition of law and
the Division Bench issued the following directions:
"In view of preceding analysis, the following
directions are issued:
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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
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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."
Thus, the Division Bench having held the
permission and said action as illegal and directed the
HMDA to demolish the said construction.
17. In Dr. G.N. Khajuria's case cited supra, the
Hon'ble Apex Court held that the land reserved for park
in a residential colony cannot be allotted for Nursery
School and the Hon'ble Apex Court also directed the said
building to be demolished by shifting the students.
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18. In Anjuman's case cited supra, the Hon'ble Apex
Court held that the land earmarked for open spaces
cannot be used for any other purpose.
19. In the light of the aforesaid principles, as discussed
supra, in the present case, the said building was
constructed in open space earmarked for park. Vide order
dated 26.08.2009, this Court directed the parties to
maintain status quo. Even then, the said building was
constructed and they are using it for the purpose of
Anganwadi Centre No.I in Neknampur village. Thus, the
said construction is in violation of the said order.
20. It is the specific case of the petitioner that the entire
property was fenced, they have already constructed
houses and they are residing in their respective houses.
It is also the specific allegation of the petitioner herein
that the said building was constructed without prior
permission from the then Gram Panchayat, Neknampur
village. Therefore, the then Gram Pancchayat,
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Neknampur village cannot construct school building
without obtaining permission and in violation of the
status quo order granted by this Court on 26.08.2009.
21. Respondent No.7 - Municipality cannot contend
that the said building is utilizing for public purpose. The
said contention of respondent No.7 is un-sustainable.
The subject property is earmarked for the purpose of
park and nobody can use the same for any purpose other
than park without seeking amendment to the permission
dated 27.02.2003. Therefore, the entire action of the then
Gram Panchayat, Neknampur village (respondent No.3)
and respondent No.7 - Municipality is illegal and
violation of order dated 26.08.2009 passed by this Court.
22. Petitioner herein also cannot claim that it will use
the said building for the purpose of its association
activities.
23. In the light of the aforesaid discussion, this Writ
Petition is disposed of directing respondent No.7 -
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Municipality to demolish the subject building within
three (3) months from the date of receipt of a copy of this
order by shifting the students, if any, to the alternative
school / centre and develop park in the said land.
As a sequel thereto, miscellaneous petitions, if any,
pending in the Writ Petition shall stand closed.
__________________
K. LAKSHMAN, J
04th February, 2025
PN
