HON’BLE SHRI G.S. SINGHVI, THE CHIEF JUSTICE AND HON’BLE SHRI JUSTICE G.BHAVANI PRASAD Writ Petition Nos.9950 and 14659 of 2005 Writ Petition No.9950 of 2005 Between: Farhad Gew Irani and three others. ……Petitioners. And Government of Andhra Pradesh, represented by its Secretary, Municipal Administration and Urban Development Department, Secretariat, Hyderabad and others. ……Respondents. Counsel for the petitioners: Sri D.Prakash Reddy, Senior Advocate assisted by Sri J. Venkateswara Reddy. Counsel for respondent No.1: Government Pleader for Municipal Administration. Counsel for respondent No.2: Sri D.Nageswara Rao Counsel for respondent No.3: Sri C.Narender Writ Petition No.14659 of 2005 Between: Boddu Rajaiah and another. …Petitioners. And Municipal Corporation, Warangal, through its Commissioner in office, Warangal and others. …Respondents. Counsel for the petitioners: Sri Bankatlal Mandhani Counsel for respondent No.1: Sri K.Joe Ratan Raj, Standing Counsel for Warangal Municipal Corporation. Counsel for respondent Nos.2 to 4: Government Pleader for Municipal Administration. Counsel for respondent Nos.5 to 7: Sri D.Prakash Reddy, Senior Advocate assisted by Sri J.Venkateswara Reddy. :: O R D E R :: January 05, 2007 Per G.S. SINGHVI, C.J. The above noted writ petitions are being disposed of by a common order because the issues raised therein are inter-related. We shall first notice the facts, which have been culled out from the pleadings and documents of the parties. The same are as under: 1) Sri Kaikusroo, son of Shapurji Irani, resident of House No.1/17, Kazipet, Warangal District filed a declaration under Section 6(1) of the Urban Land (Ceiling and Regulation) Act, 1976 (for short, ‘the 1976 Act’) on 24-8-1976 declaring the following lands: Village Survey Nos. Extent in Ac.gts. Extent in Hectares. Kadipikonda 64, 70, 71, 72, 73 25.18 10,2992 or 1,02,992 Sq.mtrs. 2) After holding inquiry, Special Officer and Competent Authority, Urban Land Ceiling, Warangal (hereinafter described as ‘the Special Officer’) prepared a draft statement under Section 8 (4) of the 1976 Act. On 28- 6-1985, the Special Officer issued final statement under Section 9, the relevant extracts of which read as under: 1. Details of lands allowed to be retained 4,000 (3,671+329 Sq.mtrs.) of house at Sq.mtrs. Kazipet. 2. Details of the lands proposed to be 52,370 surrendered at Kadipikonda Village in Sq.mtrs. Survey Nos.64, 70, 71, 72 and 73. 3) The declarant preferred an appeal against the final statement. Commissioner of Land Reforms and Urban Land Ceiling, Hyderabad- cum-Appellate Authority (hereinafter referred to as ‘the Appellate Authority’) admitted the appeal and stayed the order of the Special Officer. But, after hearing the representatives of the parties, the Appellate Authority vide its order dated 28-8-1986 dismissed the appeal. 4) The declarant and others challenged the order of the Appellate Authority in Writ Petition No.13547 of 1986, which was allowed by this Court on 20-9-1989 and the case was remanded to the Special Officer for fresh determination of the ceiling case. Thereafter, the Special Officer passed order dated 5-12-1990 under Section 8(4) of the 1976 Act and declared 83, 387 square meters of land as surplus. The appeal preferred against that order was allowed by the Appellate Authority on 17-12-1992 and a direction was given to the Special Officer to re-compute the holdings of Ms.Meharbanoo Shapurji Irani and Ms.Shirinbai Shapurji Irani. The legal heirs of the declarant did not feel satisfied. They filed Writ Petition No.17291 of 1993, which was allowed by this Court and orders dated 5-12-1990 and 17-12-1992 were quashed with a direction to the Special Officer to pass fresh order. 5) In compliance of the Court’s direction, the Special Officer passed order dated 16-1-1995 under Section 8(4) of the 1976 Act, whereby he declared that the land-holder had surplus land measuring 58,154 square meters. 6) On appeal, the Chief Commissioner of Land Administration stayed the proceedings beyond Section 10(3) of the 1976 Act. This did not satisfy the land owners, who filed Writ Petition No.1719 of 1995 questioning the fresh determination made by the Special Officer. The same was disposed of by this Court with a direction to the Appellate Authority to decide the appeal afresh. As a sequel to this, the Appellate Authority passed order dated 22-4-1995, whereby it dismissed the appeal preferred against order dated 16-1-1995. 7) The heirs of the declarant challenged the order of the Appellate Authority in Writ Petition No.9761 of 1995. They also filed WPMP.No.12090 of 1995 for staying further proceedings. The learned Single Judge accepted their prayer and passed an omnibus order of stay. 8) During the pendency of the proceedings under the 1976 Act, Farhad Gew Irani (petitioner No.1 in Writ Petition No.9950 of 2005) submitted an application in March, 2002 to the Special Officer for grant of a certificate for the purpose of obtaining building construction permission from Municipal Corporation, Warangal (for short, ‘the Corporation’). The Special Officer did not issue the desired certificate. Instead, he asked the applicant to produce 8(4) order before the Corporation. However, the applicant managed the Office Superintendent in the office of the Special Officer, who issued Memo No.A3/1139/76 dated 22-3-2002 in the name of the Special Officer and on the basis of that Memo, Farhad Gew Irani through Sai Lok Associates succeeded in obtaining provisional permission for construction of commercial complex in the residential premises bearing Nos.1/164 to 1/174, 1/174/1, 1/174/2, 1/174/3 (old) corresponding to new Nos. 1-3-172 to 1-3-185 situated at Main Road, Kazipet Town, Warangal, which, as per the approved Master Plan of Warangal, falls within the residential zone. 9) In the year 2002, Shri K. Devanand, the then Commissioner of the Corporation is said to have sent a consolidated proposal to the State Government for change of land use in the Master Plan of Warangal from residential to commercial. Simultaneously, he passed order dated 30-12-2002 for grant of provisional permission for construction of commercial complexes in the areas earmarked as residential zones in the Master Plan. 10) In furtherance of the provisional permission given to them by Shri K. Devanand, Farhad Gew Irani, his brothers and Sai Lok Associates deposited Rs.3,15,400/- as charges for conversion of the land use from residential to commercial and constructed commercial complex. After sometime, they applied for grant of permission to construct third and fourth floors. By this time, a new Commissioner appears to have taken over the reigns of the Corporation and, therefore, their application was rejected vide proceedings in RoC.No.G1/1119/2003 dated 9-9-2003 on the ground that the commercial complex falls in the residential zone of the Master Plan and without change of land use, commercial complex could not have been constructed. 11) Faced with this reversal, Farhad Gew Irani and others filed a suit for injunction in the Court of II Additional Junior Civil Judge, Warangal against the Corporation and KUDA by alleging that their officers were interfering with the construction activity. The same was registered as O.S.No.1636 of 2004. They also filed I.A.No.2709 of 2004 under Order XXXIX, Rules 1 and 2 of the Code of Civil Procedure for grant of temporary injunction. Initially, the trial court granted an ex parte order of status quo, but, after hearing the parties, the learned Presiding Officer vacated the injunction order. However, C.M.A.No.12 of 2005 filed by petitioners No.1 to 3 was allowed by II Additional District Judge, Warangal vide his order dated 29-3-2005 and by taking advantage of the Court order, they raised further construction. 12) In the meanwhile, Farhad Gew Irani and his brothers filed another application for change of land use, which was rejected by Vice- Chairman, KUDA on the ground that the commercial complex had been constructed without prior approval of the government and in violation of Section 12 of the Andhra Pradesh Urban Area (Development) Act, 1975 (for short, ‘the 1975 Act’). Writ Petition No.9950 of 2005 – Farhad Gew Irani and others v. Government of Andhra Pradesh rep. by its Secretary, Municipaltiy and Urban Development Department and others. In Writ Petition No.9950 of 1995, petitioners – Farhad Gew Irani, Shapur Gew Irani, Rustom Gew Irani and Sai Lok Associates represented by its partner P. Keshav Reddy have prayed for quashing communication dated 30-3-2005, vide which Vice-Chairman of KUDA rejected the application made for change of land use from residential to commercial in respect of H.Nos.1-3-172 to 1-3-185 belonging to Shapur Gew Irani and others and simultaneously made a request to the Commissioner of Warangal Municipal Corporation, Warangal (for short, ‘the Commissioner’) to take action in the matter of unauthorised construction raised by the petitioners. Grounds of challenge: The petitioners have questioned the legality of the decision of the Vice-Chairman of KUDA mainly on the ground of discrimination by asserting that while their application has been rejected, KUDA has recommended to the State Government for change of land use in respect of properties bearing H.No.1-08-612, Nakkalagutta, Hanamkonda, Ward No.1, Block – 7 situated at Balasamudram; H.No.13-3-46, 13-3-58, Metwada; H.No.5-10-107, Kishanpura and Sy.No.1003 situated in Hunter Road, Hanamkonda and the latter accorded permission for the same by issuing G.O.Ms.No.536, MA, dated 20-12-2002, G.O.Ms.No.556, dated 31- 2-2004 and G.O.Ms.Nos.291 to 293 dated 4-4-2005 in favour of the owners. They have further pleaded that the rejection of application after lapse of three years is clearly indicative of total arbitrariness on the part of Vice-Chairman, KUDA. Still further, they have pleaded that the land abutting main road from Warangal to Hyderabad via Kazipet is being used for commercial purposes and, therefore, there cannot be any justification for refusing change of land use. Writ Petition No.14659 of 2005 Boddu Rajaiah and another v. Municipal Corporation, Warangal through its Commissioner in Office, Warangal and others. In this petition, the petitioners have prayed for issue of a mandamus to respondent Nos.1 to 4 to demolish the illegal constructions made by Farhad Gew Irani and his two brothers. Petitioner No.1 – Boddu Rajaiah is an ex-Municipal Councillor of Warangal and claims to be a social worker, who has been espousing the cause of public and has been approaching the government officers for solving the problems of the public relating to water and electricity supply, maintenance of roads, public lands etc. Petitioner No.2 is the President of Kazipet Ambedkar Yuvajana Sangham. He is a Railway employee and is also engaged in social work. In the affidavit filed by petitioner No.2, Gadepaka Narsaiah alias Narsimha, it has been averred that even though land measuring 58154 square meters belonging to late Gew Shapurji Irani, father of respondent Nos.5 to 7 was declared surplus under the 1976 Act many years ago and the same is subject matter of Writ Petition No.9761 of 1995, which is pending before this Court, respondent No.5 colluded with Superintendent of Urban Land Ceiling Department and obtained Memo No.A/1139/76, dated 22-3-2002 and then obtained the provisional permission through M/s.Sai Lok Associates from the Corporation. He has further averred that on a complaint made by Sri Baswaraj Saraiah, Member of Legislative Assembly, Warangal Constituency and Sri Ravula Sadanandam, former President of City Congress Committee, Warangal, Director General, Anti Corruption Bureau got an enquiry conducted into the entire gamut of the construction permission obtained by respondent No.5 and his associate builder, but no action has been taken by the official respondents to stop the illegal construction of the building. According to the deponent, respondent Nos.5 to 7 have not only acted in violation of the Master Plan and constructed a commercial complex in the residential area, but they have also violated the sanctioned plan by not leaving the setbacks towards the main road and constructed shops in the front. In the counter affidavit filed by respondent No.7 – Rustum Gew Irani on behalf of respondent Nos.5 to 7, the deponent has questioned the locus of the petitioners by asserting that they do not have the right to challenge the construction permission granted by the Municipal Corporation. Respondent No.7 has alleged that the writ petition has been filed at the instance of one Ravula Sadanandam son of Sri Ramanarayana, who is a tenant in one of the mulgies where he is running a shop under the name and style of Sri Rama Cycle Stores and is also the ex-President of City Congress Committee, Warangal. He filed R.C.C.No.2 of 1999 before Rent Controller-cum-Principal Junior Civil Judge, Warangal against respondent Nos.5 to 7. Respondent No.5 also filed R.C.C.No.16 of 1999 seeking eviction of the tenant. Both the cases were disposed of by the Rent Controller on 6-3-2003 and the tenant was directed to vacate the premises. The appeals preferred against the order of the Rent Controller were disposed of by Rent Control Appellate Tribunal-cum-Principal Senior Civil Judge, Warangal on 29-3-2004, whereby the order of the trial court was vacated. The appellate order has been challenged by respondent Nos.5 to 7 in C.R.P. No.3240 of 2004, which is pending adjudication before the High Court. On merits, the deponent has averred that respondent Nos.5 to 7 are absolute owners of house bearing Nos.1/164 to 1/174, 1/174/1 to 1/174/3 (old) corresponding to new Nos.1-3-172 to 1-3- 185 situated at Main Road, Kazipet, Warangal. According to respondent No.7, late Gew Shapurji Irani was the owner of the land comprised in Survey Nos.64, 70, 71, 72 and 73 of Kadipikonda Village in Warangal District. His heirs filed a declaration under Section 6(1) of the 1976 Act. The order passed by the Special Officer declaring a part of the land as surplus, has become subject matter of various litigations. In the year 2002, an application was made under the 1975 Act for change of land use. The Commissioner of the Corporation sent a consolidated proposal for change of land use to the government. The Corporation also passed a resolution on 31-8-2002 for grant of provisional permission for construction of commercial complexes in the areas earmarked as residential zone and thereafter, provisional permission was granted vide proceedings in Roc.No.G1/10870/ 2002, dated 30-12-2002. The deponent has further averred that a sum of Rs.12,22,285/- was deposited towards construction fee and a sum of Rs.3,15,400/- was paid for conversion of land use. Respondent No.5 has denied the allegation that the disputed construction is violative of the Master Plan or the sanctioned plan. He has then averred that when the officers of the Corporation tried to interfere with the construction activity, O.S.No.1636 of 2004 was filed on the file of II Additional Junior Civil Judge, Wanragal along with an application for injunction. Initially, the trial court granted injunction, but after hearing the parties, the application was dismissed. Against that, respondent Nos.5 to 7 filed C.M.A.No.12 of 2005 in the Court of II Additional District Judge, Warangal, which was allowed on 29-3-2005. In the meanwhile, Vice- Chairman, Kakatiya Urban Development Authority, vide proceedings dated 30-3-2005 rejected the change of land use proposal, against which Writ Petition No.9950 of 2005 has been filed. Apart from filing counter-affidavit, respondent Nos. 5 to 7 have placed on record various documents including Memo dated 22-3-2002 issued in the name of Special Officer, copy of the order in RoC.No.G1/10870/ 2002 dated 30-12-2002 passed by the then Commissioner of the Corporation whereby he granted provisional permissions for construction of commercial complexes etc. in the areas abutting 18 roads despite the fact that the areas are earmarked for residential purposes and copy of letter dated 30-3-2005 issued by the Vice-Chairman of KUDA. The relevant extracts of Memo dated 22-3-2002, order dated 30-12-2002 and communication dated 30-3-2005 are reproduced below: “Memo dated 22-3-2002 Office of the Special Officer and Competent Authority, Urban Land Ceiling, Warangal. Rc.No.A3/A3/1139/76 Dated: 22-3-2002 Memo The under-named applicant has applied for issue of a certificate showing the total area of 8327 sq. meters of land deleted from computation under the Urban Land Ceiling Act towards the plinth area of dwelling houses, Mulgies, appurtenant land and additional appurtenant land around the said buildings in file No.A3/1139/76 in S.8 (4) orders dated 16-1-1995 for the buildings bearing Mpl. Nos.1/164 to 1/174 (old) etc. for applying construction permission with Municipal Corporation. The applicant is hereby informed that S.8 (4) orders Dt.16-1- 1995 passed by this office in the above file clearly show the exemption of 8327 sq. meters of land under the U.L.C. Act towards the dwelling houses and appurtenant land etc. for the above said Municipal numbers. The applicant is hereby directed to file copy of relevant extract of S.8 (4) orders Dt.16-1-1995 for obtaining Municipal permission for construction from the Municipal Corporation, Warangal. (by order) for Special Officer & Competent Authority, Urban Land Ceiling, Warangal To Sri Farhad Gew Irani, Main Road, Kazipet.” Order dated 30-12-2002 passed by the then Commissioner of the Corporation: “The Warangal city has been developing day by day fastly, particularly the areas abutting to all the 60’ and above wide roads are developing commercially, though the most of the areas are earmarked for residential use zones as per Master Plan. Thus, consolidated change of land use proposals have already been forwarded to the Government in the year 1999 for changing the land use from residential use to commercial use in respect of the areas abutting to all 60’ and above wide Master Plan and R.D. Plan Roads, but the proposals are pending with the Government. Obviously, a decision has been taken to grant the provisional permissions for construction of buildings for commercial purpose in residential areas duly collecting the change of land use charges and accordingly provisional permissions are being granted to those applicants who are coming forward seeking provisional permissions and the Council has also ratified the action taken by the Commissioner in the reference cited. But, still some persons are obtaining permissions for residential purpose and constructing the buildings for commercial in deviation to the sanctioned plans, which is resulting in loss of revenue to the Corporation in the shape of less Planning Fee, Betterment charges and other charges. Therefore, it is decided to grant the provisional permissions to the applicants in the areas abutting to the following roads and all other 60’ and above wide roads only for commercial purpose though the areas are earmarked for residential purpose duly collecting the change of land use charges and conversion fee etc. and also planning fee and betterment charges for commercial purpose, pending receipt of the orders from the Govt. an final & regular permissions will be granted after receipt of the change of land use orders from the Government. Therefore, orders are hereby issued to the Dy.City Planner, to entertain the Building Applications as mentioned above.” Letter dated 30-3-2005 of the Vice-Chairman, KUDA “OFFICE OF THE KAKATIYA URBAN DEVELOPMENT AUTHORITY: WARANGAL: From To The Vice-Chairman, The Commissioner, KUDA, Warangal. Warangal Municipal Corporation, Warangal. Roc.No.C1/564/02/349, dated 30-3-2005 Sir, Sub:- KUDA, Warangal – Change of land use from residential use to commercial use in H.No.1-3- 172 to 1-3-185 belongs to Shri Shawpur Gew and others. Ref:- The Commissioner, W.M.C. Lr.No.G1/4534/02, dt.25-4-2002. *** I invite kind attention to the referenced cited. It is to inform that this authority’s technical officials have inspected the site and observed that the applicants have already constructed Cellar + Ground + 2 floors commercial complex building and occupied the shops and commercial activities are being taken up without prior approval of the Government as against the violation of U/S.12 of A.P.U.A. (D) Act, 1975. No ownership documents, link titles and ULC have been submitted for confirmation. Further the applicant has filed a suit against the KUDA in O.S.No.1636/04 in I.A.No.2709/2004. In view of the above facts, the change of land use proposals are rejected and request the Commissioner to take action on the unauthorised construction as per rules in force. Yours faithfully, Sd/- Vice-Chairman. Copy to Sri Shapur Gew and others, H.No.1-3-172 to 1-3-185, Main Road, Kazipet.” The extracts of report submitted by Joint Collector, Warangal to District Collector, Warangal, which appears to have been forwarded to Director General, Anti-Corruption Bureau in furtherance of his letter dated 19-1-2005 highlighting the irregularities committed by different functionaries are also reproduced below: “IRREGULARITY 1: As per G.O.Ms.No.423, M.A., Dt. 31-7-97 and municipal buildings byelaws, 1981, one should submit a valid ownership document. In this case, the applicant has submitted Xerox copies of the house tax paid receipts and notary document made between the developer (applicant) and the owner, which is an invalid document. Basing on this, the building permission was given. IRREGULARITY 2: The proposed building is for commercial purpose and the land use as per Master Plan in this particular site is residential. Basing on this, the application should have been refused. But in this case, the provisional permission was granted, against the rules of Section 11 and 12 of the APUAD Act, 1975. IRREGULARITY 3: In this case, the applicant has obtained the building permission duly misleading the corporation suppressing the fact of a suit pending in the court regarding scheduled property, which was shown as proposed to be demolished. Thereafter, an objection petition was also filed by Ravula Sadanandam stating that there is a suit pending between the owner and him regarding the Rent Control Act as he is one of the tenants of the existing shops which were shown as “to be removed” in the proposed constructions. IRREGULARITY 4: U.L.C. clearance is not produced. Now the builder is constructing the building in the plot as shown in the municipal plans, as he is permitted to complete the construction within three years from the date of issuing the building permission. The officials of the corporation approached and stopped the construction as he failed to obtain the change of land use from the Government even after lapse of 2½ years. Further, the provisional permission, which was given earlier, was not valid. Aggrieved with this, he has approached the Court and obtained status quo order in I.A.No.2709/2004 in O.S.No.1636/2004. But, disobeying the Court orders, the owner builder is continuing the construction during the holidays. After noticing the same, the construction made after issuing the status quo order was removed departmentally recently. In conclusion, the gist of the complaint is that: A. Memo A3/1139/76, dt: 22.3.2002 from S.O. U.L.C., Warangal Office was unauthorised and illegal is held proved. B. Building permission (“Provisional”) was issued by W.M.C. vide Permission No.27/2002 Date: 19-4-2002 which suffers from the following fundamental defects. i) There is no provision in the Act for issue of provisional building permission. ii) Change of land use was not obtained prior to issue of permission from Competent Authority i.e. the Government. iii) Permission was issued without submission of valid ownership document (which is preliminary requirement to consider a building permit). iv) Valid U.L.C. clearance was not produced. v) The Applicant has suppressed the fact that the site in question is part of the land for which ULC case is pending in the Court and no finality is arrived regarding any issue related to this land. vi) The applicant has also suppressed the fact that another court case is pending relating rent control dispute and the disputed portion was shown as “To be removed”. vii) Cellar, Ground + 2 floors covering 15,356.54 SFT was permitted vide “Provisional building permit” whereas Ground + two floor slabs laid, brick work under progress in Block No.1, 2, 3. Columns raised, cellar slab not raised in Block No.5 & 6 and ground floor slab, 1st floor slab demolished in Block No.4 as on today, as per the report of the City Planner, Warangal Municipal Corporation.” Before proceeding further, we consider it necessary to mention that in furtherance of the direction given by the Court, Smt.Neetu Prasad, Commissioner of the Corporation appeared in person on 1-3-2006 and made a statement that the area where commercial complex has been constructed by Farhad Gew Irani and his brothers through Sai Lok Associates is earmarked for residential purposes in the Master Plan and Zoning Plan. She also gave out that her predecessor had, without any authority, permitted construction of commercial buildings in the residential zone. On the next date of hearing, learned Government Pleader for Municipal Administration produced Xerox copy of Memo No.1246/SC.D/ A3/2002-4, dated 14-3-2006 and G.O.Rt.No.1446, General Administration (SC.D) Department, dated 14-3-2006 whereby the State Government initiated disciplinary proceedings against Shri K. Devanand, former Commissioner of Warangal Municipal Corporation under Rule 8 of the All India Services (Discipline and Appeal) Rules, 1969