Dismissed

Mrs.v.Sujata Rao, v. State of Andhra Pradesh

Telangana HC18 Mar 2014WP/23099/2006

Case brief

AI extract

What is this about?

This High Court disposed of writ petitions challenging Government Orders changing land use from residential to commercial in the Vayupuri society. The Court distinguished the cited Supreme Court precedent on housing societies, held that Section 12 of the AP Urban Areas (Development) Act did not require individual notices to members, and dismissed the petitions as the statutory procedure was duly f

What did the court decide?

Writ petitions dismissed with no costs; pending miscellaneous petitions stood closed.

Mrs.v.Sujata Rao, Vs State of Andhra Pradesh — Land Acquisition | Telangana HC (2014)

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*** THE HON’BLE SRI JUSTICE A.RAMALINGESWARA RAO**

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+ WRIT PETITION Nos.21003 AND 23099 OF 2006

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% 18—03—2014

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# The Air Force Officers Co-operative Housing Society Limited Vayupuri, Secunderabad, rep. by its Honourary Secretary, and others

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vs.

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$ Government of Andhra Pradesh, rep. by the Secretary Municipal Administration and Urban Development (II) Department, Secretariat, Hyderabad and others.

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… Respondents

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!Counsel for the Petitioner : Sri V.Hari Haran ^Counsel for the Respondents : Sri G.P. for MA & UDA.

<Gist :

>Head Note :

? Cases referred

1. 2012 (3) SCC 727

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2. 2002 (2) ALT 501 (D.B.)

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3. AIR 1995 AP 246

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4. 1993 Supp (2) SCC 433

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5. 1997 (3) ALD 449 (D.B.)

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6. (2005) 5 SCC 632

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HON'BLE SRI JUSTICE A.RAMALINGESWARA RAO

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WRIT PETITION Nos.21003 and 23099 of 2006

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COMMON ORDER:

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Heard the learned counsel for petitioners, the learned Assistant Government Pleader for Municipal Administration & Urban Development for first respondent, the learned Standing Counsel for respondents 2 and 3 and the learned counsel for respondents 4 and 5 in both the cases.

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2. These two writ petitions are disposed of by a common order in view of the attack made against the same Government Orders in G.O.Ms.No.505, Municipal Administration and Urban Development (II), Department, dated 03.12.2004 and G.O.Ms.No.634, Municipal Administration and Urban Development (DI) Department, dated 01.07.2005 by the petitioners in both the writ petitions.

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3. The petitioners in W.P.No.21003 of 2006 are The Air Force Officers Co-operative Housing Society Limited, Vayupuri, Sainikpuri, Secunderabad (Society) and its two members, whereas the petitioners in W.P.No.23099 of 2006 are members of the said Society. They assailed the validity of the said Government Orders issued in favour of respondents 4 and 5.

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4. The Society consists of members belonging to the officers of Air Force who developed a layout in an extent of 50 acres in survey No.218/1/2 of Malkajgiri Village, Hyderabad East Taluk, Hyderabad District after purchasing the same from the Government of Andhra Pradesh vide G.O.Ms.No.1427, Revenue Department, dated 08.09.1964. It formed a layout after obtaining sanction from the Direction of Town Planning, Andhra Pradesh, Hyderabad on 17.06.1976 and allotted plots to its members. Plot No.133, admeasuring 989 square yards was allotted in favour of one Lt.Col.H.S.Sawhney. He obtained permission for construction of ground and first floor under permit

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No.02/239/2001 dated 04.09.2001 from the erstwhile Malkajgiri Municipality, but only ground floor was constructed. He sold the said semi finished house along with land to the fifth respondent.

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5. The fifth respondent submitted a representation on 12.04.2004 to the Government requesting for change of land use from residential use to industrial use for service industry with an intention to build a Hitech automobile service centre. The representation was sent to the second respondent for his remarks. The second respondent vide his letter dated 05.08.2004 submitted detailed remarks to the Government stating that the site purchased by the fifth respondent is presently covered by Zonal Development Plan of revised Moula Ali Zone which was earmarked for residential use zone and site is surrounded by existing 150 feet wide road (Inner ring road bye-pass) on southern side, 60 feet wide road on western side, residential houses on north and eastern sides. He further reported that the entire stretch abutting 150 feet wide road is proposed as commercial belt in the draft revised Master Plan 2020 and recommended the proposal to the Government for change of land use from residential use to commercial use/service industry use – Automobile service station since service industries are permissible in general commercial use zone and as well as in industrial use zone.

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6. On receipt of the remarks, the Government issued a draft notification on 03.11.2004 inviting objections and suggestions from the public as required under Section 12 (3) of the Andhra Pradesh Urban Areas (Development) Act, 1975 (for short, the Act) read with Rule 13-A of the Urban Development Authority (Hyderabad) Rules, 1977 (for short, Rules). The notification was published in Andhra Pradesh Extraordinary Gazette No.464 dated 06.11.2004 giving seven days time to the general public to file any objections or suggestions. Since no objections were received from the public, the second respondent vide his letter dated 20.11.2004 informed the Government that the fifth respondent paid the necessary development charges and processing fee for change of land use and hence final orders were issued in G.O.Ms.No.505 dated 03.12.2004 changing the land use from residential use to industrial use for establishment of an automobile servicing unit.

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7. The fifth respondent again submitted another representation on 25.01.2005 stating that he wants to utilise the part of the proposed building for commercial purpose and requested the Government to issue orders accordingly. Since the second respondent earlier recommended for change of land use to commercial use/industrial use, the Government issued a draft notification on 30.04.2005 inviting objections and suggestions from the public and the notification was published in the Andhra Pradesh Gazette No.279 dated 06.05.2005 giving fifteen days time to the general public to file any objections or suggestions. Since no objections were received from the public, the second respondent informed the Government that the fifth respondent paid necessary development charges and processing fee and the Government after a period of 25 days from the date of issue of draft notification, issued final orders in G.O.Ms.No.634 dated 01.07.2005 changing the land use from industrial use to commercial use. The said Government Orders are under challenge in these two writ petitions.

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8. It is the case of respondents 1 and 2 that the Act does not require issuance of notice by the Government to the individuals and the Bye-laws of the Society cannot over ride statutory power vested under the Act.

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9. Respondents 4 and 5 filed a counter-affidavit stating that they are not members of the first petitioner Society and the Bye-laws do not bind on them. In any event, the said Bye-laws cannot over ride statutory powers vested under the Act. Since the entire stretch of 150 feet inner ring road was proposed as a commercial belt in the draft revised master plan 2020 and the petitioners having failed to raise any objections to the revised proposed master plan, cannot file the present writ petitions. They started construction in the month of August, 2006 by investing huge amounts after obtaining permissions from the competent authority on 17.05.2006. They waited for 15 months to get the land converted and 10 months for getting building approvals from respondents 2 and 3 and thus there is no hastiness on the part of respondents 1 to 3 in taking action.

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10. Respondents 4 and 5 further filed an additional counter-affidavit stating that during the pendency of these writ petitions, the Government revised the master plan for Moula Ali zone segment vide G.O.Ms.No.288 dated 03.04.2008 making the entire stretch commercial. For the said change also, the petitioners did not raise any

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objections.

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11. The learned counsel for petitioners contended that the Bye-laws of the Society restrict sale of plots to non-members and also regulate the constructions. The fifth respondent did not become a member of the society and violated the Bye-laws of the Society. He relied on a decision of the Hon’ble Supreme Court in Bangalore City

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Cooperative Housing Society Ltd. V. State of Karnatak a^[1] and contended that the change of land use without notice to the petitioners is illegal.

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12. On the other hand, the learned Assistant Government Pleader for Municipal Corporation submitted that the procedure prescribed under Section 12 of the Act read with Rule 13 of the Rules have been followed while issuing the impugned Government Orders. He also submitted that the said Rule was upheld by this Court in the decision reported

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in Forum for a better Hyderabad V. Govt. of A.P.^[2] .

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13. The learned counsel for respondents 4 and 5 submitted that the Bye-laws of the Society cannot regulate the purchaser from his construction activity and in any event since respondents 1 and 2 have followed the procedure for conversion of residential use zone to commercial use zone, it cannot be held that the impugned Government Orders are illegal. He also submitted that in view of the subsequent change of zonal plan under G.O.Ms.No.288 dated 03.04.2008 making the entire stretch of 150 feet road as commercial zone, the challenge of the petitioners is misconceived. He relied on K.Gopi V. Govt. of A.P.^[3] , M.V.Elisabeth V. Harwan Investment & Tradin g^[4] ,

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Dr.A.L.N.Prasad V. State of A.P.^[5] and Zoroastrian Coop. Housing Society Ltd. V. District Registrar, Coop. Societies (Urban)^[6] .

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14. Chapter-3 of the Act deals with Master Plan and Zonal Development Plans. Section 6 deals with preparation of Master Plan and Section 7 deals with Zonal Development Plans. Section 8 provides for consultation with the local authority comprised within the development area at the initial stage of the preparation of the plan, after preparation of draft plan and before submission to the Government for approval. Section 10 comes into operation immediately after plan was approved by the Government. Section 12 deals with modification to the plan. The relevant provisions of

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Section 12 read as follows:

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“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.

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(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.

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(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.

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(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)………. (6)………. (7)……….”

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15. The Rules were made in exercise of the powers conferred by sub-section (1) of Section 58 of the Act. Rule 13 deals with modifications to the Master Plan. Rule 13-A deals with the modifications to the Master Plan by the

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Government and it reads as follows:

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“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 sub-section (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.

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(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.”

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16. In the instant case, seven days notice as contemplated in the Rules was given before issuing G.O.Ms.No.505 dated 03.12.2004 and fifteen days notice was given before issuing G.O.Ms.No.634 dated 01.07.2005 changing the land use from residential use to industrial use and from industrial use to commercial use respectively. Thus the procedural compliance was done by the first respondent, as the representation was made to the first respondent only. Thus, it cannot be held that the impugned Government Orders are illegal.

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17. The decision of Bangalore City Cooperative Housing Society Ltd. cited by the learned counsel for the petitioners is not applicable to the facts of the case. The said case arose under the provisions of Land Acquisition Act. When land was acquired for the purpose of a cooperative housing society without framing a scheme which is a sine qua non for treating acquisition of land for a cooperative housing society as an acquisition for “public purpose” within the meaning of Sec.3(f)(vi) of the Act, the same was quashed by the High Court and the said decision was upheld by the Supreme Court.

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18. Now, from the additional counter-affidavit, it is clear that the Government issued G.O.Ms.No.288 dated 03.04.2008 making the entire stretch i.e., the road from R.K.Puram to ECIL X Roads which abuts Vayupuri as commercial use zone. The petitioners admittedly did not raise any objections when the draft notification was published in the Gazette and in any event Section 12 of the Act read with Rule 13-A of the Rules does not contemplate issuance of individual notices to any person. This court in K. Gopi’s case (3 supra) held that when no objections were filed by persons and authorities concerned expressed ‘no objection’ and no bias was alleged against them, the impugned Government Orders have to be upheld. In view of upholding of the impugned Government Orders, the consideration of decisions cited by the learned counsel for respondents 4 and 5 are unnecessary.

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19. The writ petitions are accordingly dismissed. No costs. Miscellaneous petitions pending, if any in these writ

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petitions, shall stand closed.

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______________________________ A.RAMALINGESWARA RAO, J Date:18.03.2014 L.R.Copy to be marked B/o. TJMR

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[1] 2012 (3) SCC 727 2 2002 (2) ALT 501 (D.B.) [3] AIR 1995 AP 246 [4] 1993 Supp (2) SCC 433 [5] 1997 (3) ALD 449 (D.B.) [6] (2005) 5 SCC 632

Mrs.v.Sujata Rao, v. State of Andhra Pradesh

Case brief

What is this about?

What did the court decide?

Mrs.v.Sujata Rao, v. State of Andhra Pradesh

Case brief

What is this about?

What did the court decide?

What the court decided

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