IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) FRIDAY, THE TWENTIETH DAY OF MARCH TWO THOUSAND AND NINE PRESENT THE HON'BLE MR JUSTICE C.V.NAGARJUNA REDDY WRIT PETITION No.10605 of 2002 Between: 1 Smt(Dr.) Rama Sri Krishna W/o. Dr. M. Sri Krishna residing at KENT BRTSEE, United Kingdom. rep. by their Power of attorney holder Smt. (Dr.) Suvarna, Wife of S. Jayant Kumar, 70 years, residing at 1-1-1, Musheerabad, Hyderabad. 2 Smt. Sathyavathi Ramavataram Wife of late K. Ramavataram residing at STAM FORD, United States of America. rep. by their Power of attorney holder Smt. (Dr.) Suvarna, Wife of S. Jayant Kumar, 70 years, residing at 1-1-1, Musheerabad, Hyderabad. ..... PETITIONERS AND 1 Municipal Corporation of Hyderabad, rep. by its Commissioner Tank Bund Road, Hyderabad. 2 Chief City Planner, Town Planning Section, Head Office, Tank Bund Road, Hyderabad. .....RESPONDENTS Counsel for the Petitioners:MR.M.BALA SUBRAHMANYAM Counsel for the Respondents:MR.SASHIDHARAN NAIR The Court made the following : ORDER: This writ petition is filed for a writ of mandamus to declare the action of the respondents in demanding payment of 5% open space contribution charges for grant of building permission in the premises bearing Nos.1-1-1/8 to 10, 11, 12, 14 and 16 of Golconda X road, Musheerabad, Hyderabad, as illegal, arbitrary and without authority of law. The petitioners also sought for a direction to the respondents to forthwith grant permission to them without insisting on payment of 5% open space contribution charges. Heard Sri M.Bala Subrahmanyam, learned counsel for the petitioners and Sri Sashidharan Nair, learned counsel representing the learned Standing Counsel for the respondents. The petitioners are admittedly the owners of house property bearing premises numbers referred to above admeasuring 1669 sq.meters of Bakaram Village, Musheerabad, Hyderabad. The petitioners pleaded that buildings were constructed in the above- mentioned premises more than 40 years back after obtaining permissions from the Municipal Corporation; that open land taxes were being paid for the property as demanded by the Corporation from time to time and that they inherited the property from their mother Smt. Saradamma under a Will. It is averred that the property is abutting the main road leading from R.T.C. X Road and Musheerabad to Secunderabad, which is one of the arterial roads in twin cities and the area is fully developed with all the amenities being available there at. It is also averred that the property opens on to the main road itself and has a frontage of 50 feet wide approach from the main road. Intending to develop the property by constructing a building with cellar, ground floor and five upper floors, the petitioners made application on 06.08.2001 for permission for construction of the building under the provisions of the Hyderabad Municipal Corporation Act, 1955 (for short ‘the Act’). They have paid Rs.2,50,235/- towards building permit fee and Rs.12,668/- towards sub-division charges as demanded by the respondents. However, respondent No.2 vide his letter, dated 15.04.2002 directed the petitioners to pay the following amounts. Development charges Rs. 24,458/- External Betterment charges Rs. 36,636/- Betterment charges Rs.1,22,288/- 5% open space contribution charges Rs.13,69,780/- ____________________ Total : Rs.15,53,262/- ____________________ These charges were in addition to the building permit fee and sub-division charges already paid by the petitioners. The petitioners assailed the action of the respondents in demanding 5% open space contribution charges of Rs.13,69,780/- in this writ petition. The respondents filed a counter-affidavit. During the pendency of the writ petition, the respondents issued permit in pursuance of the interim order passed by this Court on 17.06.2002 on the petitioners furnishing bank guarantee towards open space contribution charges. In the counter-affidavit filed by respondent No.2, it is inter alia stated that the open space contribution charges were demanded since there is no approved layout covering the area over which the petitioners are proposing to construct the building. Resolution No.11, dated 23.06.2001 passed by the Corporation is relied upon by the respondents to justify the demand towards open space contribution charges. At the hearing, Sri M.Bala Subrahmanyam, learned counsel for the petitioners submitted that Municipal Corporation of Hyderabad (Layout) Rules, 1965 (for short ‘the Layout Rules’) came into existence with effect from 20.01.1966, while the mother of the petitioners raised certain structures in the premises in question under a valid permit issued by the Corporation on 13.10.1962. He further submitted that as the building was constructed much prior to the advent of the Layout Rules, it cannot be said that the site over which the petitioners proposed to raise construction over it was situated in an unauthorized layout or colony. On this premise, he submitted that resolution No.11, dated 23.06.2001 on which the respondents placed reliance cannot be applied to the case of the petitioners. The learned counsel for the respondents submitted that though all the amenities were available in the area where the property in question is situated, still the fact remains that there was no approved layout covering the property and, therefore, the above-mentioned resolution applies to the petitioners and consequently, they are liable to pay the open space contribution charges as per the said resolution. I have carefully considered the respective submissions of the learned counsel for the parties. It is not in dispute that the Layout Rules came into force with effect from 20.01.1966. It is also not in dispute that the site, on which, the building is proposed to be constructed, is situated in a developed area with all the amenities such as water, drainage and roads and there is no need for any further development by the Corporation. The further fact that even prior to the commencement of the Layout Rules, the mother of the petitioners constructed certain buildings by obtaining a permit on 13.10.1962 and the petitioners are seeking to raise fresh constructions in place of old constructions made by their mother under the valid permit issued by the Corporation is also not in dispute. In this admitted fact situation, the resolution of the Corporation on the basis of which 5% open space contribution charges are demanded, requires to be considered. The said resolution runs as follows: “The Standing Committee, MCH, recommends to the General Body of the Corporation, to amend its earlier resolutions No.25, dt. 30.9.1999 and no.22, dt.30.3.2000 permitting to collect 5% open space contribution charges as per the registration value only in unauthorized layouts, unauthorized sub-divisions and unauthorized colonies developed in private lands without layout approval and these charges need not be collected in the approved layout and sub-divisions covered by approved layouts and in the existing built- up areas where all amenities are provided by M.C.H.” A careful reading of the above-reproduced resolution reveals that 5% open space contribution charges are envisaged in respect of the site situated in unauthorized layouts or colonies and where unauthorized sub-divisions were made without layout approvals. Collection of these dues is exempted in cases where the property is situated in the approved layout and covered by sub-divisions. The collection of open space contribution charges is also excluded in respect of the existing built-up areas, where all the amenities are provided by the Corporation. In my considered view, the above-mentioned resolution cannot be applied to the case of the petitioners for two reasons, the first reason being that the site in respect of which the petitioners are proposing to construct building was already occupied by certain buildings which were constructed under a valid permit issued prior to the commencement of the Layout Rules. Admittedly, the Layout Rules do not have retrospective operation. Therefore, it cannot be said that the area over which the buildings were constructed prior to the commencement of the Rules can be treated as being situated in unauthorized layouts or colonies. As regards the sub- division, the respondents have collected the sub-division charges and, therefore, mere non-sub-division of the site cannot be taken as a ground to collect the open space contribution charges. De hors this ground, yet another reason for which the resolution cannot be made applicable to the petitioners’ case is that all the amenities are provided by the Municipal Corporation and the entire area where the property is situated is fully developed with all the amenities available. The learned counsel for the respondents submitted that the purpose of collecting the open space contribution charges is to enable the Corporation to provide the amenities such as drainage, water connections etc., to the proposed buildings, which come up in unauthorized layouts or colonies. It is also admitted that the bye-laws do not provide for open space contribution charges but it is only on the basis of the resolution that the Corporation is seeking to collect these charges. The purpose for collecting the open space contribution charges being what is referred to above, I do not see any rationale in the respondents in demanding and collecting these charges in respect of an area, which is situated in a developed area having all the above-mentioned amenities. For the above-mentioned reasons, the demand made by the respondents towards 5% open space contribution charges from the petitioners is declared as illegal and is accordingly, set aside. The respondents are directed to return the bank guarantee furnished by the petitioners within a period of six (6) weeks from the date of receipt of a copy of this order. The writ petition is accordingly, allowed. C.V.NAGARJUNA REDDY, J 20th MARCH, 2009. kvni