IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) FRIDAY, THE FIFTH DAY OF DECEMBER TWO THOUSAND AND EIGHT PRESENT THE HON'BLE MR JUSTICE B.SESHASAYANA REDDY WRIT PETITION NO : 4826 of 2006 Between: I. Rajesh Kumar S/o. late Iddam Peraiah R/o. H.No. 4-5-26/43/A, 1/2 Navbharat Nagar, Guntur-7, Rep. by his G.P.A. Holder K.V. Narasimha Raju S/o. Pullam Raju, age 56 yrs, Occ: Business, R/o. Malkajgiri, Hyderabad. ..... PETITIONER AND 1 Serilingampally Municipality Serilingampally, R.R. District, 2 K. Netaji Prasad S/o. K.V. Rama Rao Kukatpally, Hyderabad-500 072. .....RESPONDENT(S) Petition under Article 226 of the constitution of India praying that in the circumstances stated in the Affidavit filed herein the High Court will be pleased to declare the proceeding No. G/870/BP/93/2005-06 dt. 25-2- 2006 issued by the 1st Respondent herein granting building permission to the 2nd respondent without any approved layout by competent authority in S.No. 211 of Madinaguda Village, Serlingampally Mandal and Municipality, R.R. District as illegal, arbitrary and unjust by way of writ of Mandamus, order or direction and pass such other order or orders as may be deemed fit and proper in the interest of justice. Counsel for the Petitioner: MR.M.V.S.SURESH KUMAR Counsel for the Respondent No.: MR.POLISETTY RADHA KRISHNA(SC FOR MPL(TA)) WRIT PETITION NO : 24044 of 2006 Between: I. Rajesh Kumar S/o Late Iddam Peraiah R/o H. No. 4-5-26/43/A, 1/2 Navbharat nagar, Guntur-7 rep by GPA Holder, K.V. Narasimha Raju ..... PETITIONER AND 1 Hyderabad Urban Development Authority repby Vice Chairman and Managing Director, 1-8-323, Paigah Place Rosoolpura, Secunderabad. 2 Sri K. Hari Singh S/o Somani r/o H. No. 4-238, Geetanaar, Opp: Municipal Office, Dilsukhnagar, Hyderabad. 3 Smt. Tara Bhai W/o K.Hari Singh r/o H. No. 4-238, Geetanaar, Opp: Municipal Office, Dilsukhnagar, Hyderabad. .....RESPONDENT(S) Petition under Article 226 of the constitution of India praying that in the circumstances stated in the Affidavit filed herein the High Court will be pleased to declare the proceeding vide Lr. No. 12400/P4/Plg./HUDA/2005 dt 11-8-2006 issued by the 1st respondnet herein as illgal, arbitrary, unjust contrary to its earlier proceeding in LR. No. 12400/P4/H/05 dt 23-7-2006 by issuing any appropriate Writ of mandamus of any other appropriate writ order or direction and pass such other order or orders as this Hon'ble Court deems fit and proper. Counsel for the Petitioner: MR.M.V.S.SURESH KUMAR Counsel for the Respondent No.: M.DHANANJAY REDDY (SC FOR HUDA) WRIT PETITION NO : 27349 of 2006 Between: 1 K. Hari Singh S/o Somani Naik r/o Bharadwaj Apartments, Dilsukhnagar, Hyderabad. 2 Smt. K. Tarabai W/o K. Hari Singh r/o Bharadwaj Apartments, Dilsukhnagar, Hyderabad. ..... PETITIONER(S) AND 1 The Serilingampally Municipality, rep by its Commissioner, Serilingampaly, Ranga Reddy District. 2 The Hyderabad Urban Developement Authority, rep by Vice Chairman, 1-8-328, Paigah Palace, Police Lines, Rasoolpura, Secunderabad-500 003. .....RESPONDENT(S) Petition under Article 226 of the constitution of India praying that in the circumstances stated in the Affidavit filed herein the High Court will be pleased to issue a Writ, order or direction more particularly one inthe nature of Writ of Mandamus, declaring the impugned proceedings in Lr. No. 12406/P4/11/05, dated 15-12-2006 of the 2nd respondnet and consequential proceedings of the 1st respondnet in Lr. No. G/322/BP/3966/2006, dt 20-12-2006 as illegal, arbitrary and contrary to the provisions of Municipality Act and rules made thereunder and consequently direct the respondents to permit the petitioners to make construction as per the approved plan in terms of the proceedings No. G/322/BP/3966/06, dated 23-8-2006 of the 1st respondent and pass such other orders as this Hon'ble Court may deems fit and proper inthe circumstances of the case. Counsel for the Petitioner:MR.N.SUBBA RAO Counsel for the Respondent No.: MR.POLISETTY RADHA KRISHNA(SC FOR MPL(TA)) The Court made the following : COMMON ORDER: 1. The issue involved in these three writ petitions is with regard to sanction of building permissions in respect Plot Nos.128, 7 and 8 in Sy.No.211 of Madinaguda village, R.R. District. They were heard together and are being disposed of by this common order. 2. Sri.I.Rajesh Kumar claims that he got Ac.10-28 guntas in Sy.Nos.211 and 217 by way of inheritance from his parents viz., Iddam Peeraiah and Sunanda Devi. He filed L.G.C.No.14 of 2004 on the file of Special court under A.P. Land Grabbing and (Prohibition) Act, 1982 against Ashok and 66 others alleging that 1st respondent therein brought into existence several fictitious sale deeds in favour of R2 to R67 and therefore R2 to R67 are land grabbers. He also moved I.A.No.361 of 2004 for temporary injunction restraining the respondents therein from changing the nature of property to an extent of Ac.4.27 guntas out of Ac.10-27 guntas in Sy.No.211 of Madinaguda village, R.R. District. The Special Court by an order dated 26.4.2005 granted status quo. 3. K.Netaji Prasad submitted a building permission application to Serilingampally Municipality in respect of Plot No.128 in Sy.No.211 of Madeenaguda village. The said application came to be refused on the ground of pendency of A.S.No.829 of 2003. K.Netaji Prasad assailed the action of Serilingampally Municipality in refusing his building permission application by filing W.P.No.20209 of 2005. The said writ petition came to be disposed of on 15.11.2005 directing the Serilingampally Municipality to consider the representation of K.Netaji Prasad seeking permission to construct the building de-horse the pendency of A.S.No.829 of 2003 and pass appropriate orders within six weeks from the date of receipt of a copy of the order. 4. I.Rajesh Kumar filed Review application being Rev.WPMP.No.3912 of 2006. The said review petition came to be disposed of on 17.2.2006. The order passed in the review petition reads as under: “ Petitioner herein is a third party to the writ petition. He has filed this application for review of the order dated 15.11.2005 passed in W.P.No.20209 of 2005. Heard counsel for parties. It is the contention of the petitioner that petitioner filed L.G.C.No.14/2004 in respect of Ac.4.21 guntas and the plot over which the writ petitioner is proposed to construct is part and parcel of Ac.4.21 guntas and that land grabbing court has granted “Status Quo” order. It is further ordered that there is every likelihood of Serilingampally Municipality considering the building permission application of the petitioner in pursuance of the direction given in the writ petition, without taking into account the status quo order granted by the Land Grabbing Court and that is the reason for him to approach this court seeking review of the order passed in W.P.No.20209 of 2005. Learned counsel for the petitioner submits that the petitioner has already taken steps to include the petitioner as party respondent in L.G.C.No.14 of 2004. Since the petitioner who is third party to the writ petition has already obtaining status quo order in L.G.C.No.14/04 in respect of larger extent, the Municipality has to take into account the status quo order granted by the Land Grabbing court in L.G.C.No.14/2004. While considering the building permission of the application. With the above observation this review application is disposed of.” 5. Serilingampally Municipality considered the building permission application of K.Netaji Prasad and accorded sanction for construction of a residential building vide proceedings No.G/870/BP/93/2005-06, dated 25.2.2006. I.Rajesh Kumar filed W.P.No.4826 of 2006 against Serilingampally Municipality and K.Netaji Prasad seeking the following relief: “ For the reasons stated in the accompanying affidavit, it is hereby prayed that this Hon’ble Court may be pleased to declare the proceedings No.g/870/Bp/93/2005-06 dated 25.2.2006 issued by the 1st respondent herein granting building permission to the 2nd respondent without any approved layout by competent authority in S.No.211 of Madinaguda village, Serilingampally Mandal and Municipality, R.R. District as illegal, arbitrary and unjust and by way of writ of mandamus, order or direction and pass such other order or orders or direction and pass such other order or orders as may be deemed fit and proper in the interest of justice.” 6. Sri.K.V.Narasimha Raju, GPA holder of I.Rajesh Kumar has sworn to the affidavit filed in support of W.P.No.4826 of 2006. The circumstances which made the petitioner to invoke the jurisdiction under article 226 of the Constitution of India have been detailed in para 4 of the writ affidavit, which reads as under: “ 4. I humbly submit that an appeal lies to the Municipal Council u/s 345(b) of A.P. Municipalities Act, 1965 against the proceedings dated 25.2.2006 of the 1st respondent herein granting building permission to the 2nd respondent. It is submitted that as the building permission granted by the 1st respondent herein is contrary to the section 184(2) of the A.P. Municipalities Act, 1965 and also contrary to section 13(4) of A.P. Urban Development Act, 1975, I sought to file an appeal before the Municipal Council on 9.3.2006. It is submitted that I went to Municipal office at 10.00 a.m. on 9.3.2006 to present the petition before the Municipal council and I realized that there is no Municipal Council and it is superceded by a Special Officer. I sought to meet the Special Officer to present the appeal to the special officer, but the special officer was not present in the office. I waited for few hours till lunch time and I was informed that the Special Officer holds other positions as Project Director, District Rural Development Agency and Project Director, Velugu and he would be available in the office of Collectorate in R.R. District. I also learnt that he would visit the municipal office occasionally and that no purpose would be served by me awaiting at the municipal office. Having realized that my exercise to file an appeal before the special Officer would depend upon the uncertain visit of the Special officer and in view of the fact that the 2nd respondent is making efforts for making construction, I am constrained to approach this Hon’ble Court by way of this writ petition. The proceedings dt.25.2.2006 issued by the 1st respondent herein is illegal, arbitrary for the following grounds: (1) The 1st respondent has not considered the orders passed by this Hon’ble court in Review WPMP.No.3912 of 2006 in W.P.No.20209 of 2005 dated 17.2.2006 wherein the 1st respondent herein was directed to consider the status quo order in LGC.No.14 of 2004 while considering the grant of permission for construction to the 2nd respondent. (2) The proceedings dated 25.2.2006 of the 1st respondent is illegal in as much as there is no layout in respect of the land in question and there cannot be building sanction under section 184 (2) of the A.P. Municipalities Act, 1965 without there being a layout, sanctioned in accordance with lay out rules, 1970. (3) The proceedings of the 1st respondent dated 25.2.2006 is contrary to the section 13(4) of the A.P. Urban Areas (Development) Act, 1975.” 7. K.Hari Singh and K.Tarabai claim to have purchased plot Nos.7 and 8 in Sy.No.211 of Madinaguda village, R.R. District under registered sale deeds dated 21.12.1998. They made an application dated 26.12.2003 to Serilingampally Municipality to accord permission for construction of a residential house. The said application came to be rejected on certain objections. They re-submitted the application after complying the objections. There being no action on the part of Srilingampally Municipality on the re-submitted application, they approached this Court by filing W.P.No.22169 of 2004. Pending the writ petition permission came to be accorded subject to the outcome of the result in A.S.No.829 of 2003. They paid an amount of Rs.2,07,677/- for development charges. Proceedings came to be issued by the Commissioner, Serilingampally Municipality for according permission for construction of a residential building with stilt + five floors vide proceedings No.G/322/BP/3966/2006, dated 23.8.2006. 8. I.Rajesh Kumar filed W.P.No.24044 of 2006 assailing the action of HUDA in according technical approval to building plan in respect of Plot Nos.7 and 8 of Sy.No.211 of Madinaguda village, R.R. District. He submitted objection petition before Vice Chairman, Hyderabad Urban Development Authority on 20.11.2006. Acting on the objection petition, the permission granted to K.Hari Singh and Tara Bai came to be kept in abeyance until disposal of the court cases. Proceedings No.12400/P4/H/05, dated 15.12.2006 issued by HUDA and consequential proceedings Lr.No.G/322/BP/3966/2006, dated 20.12.2006 issued by the Commissioner, Serilingampally Municipality, R.R. District are under challenge by K.Hari Singh and K.Tarabai in W.P.No.27349 of 2006. It is suffice to refer Lr.No.G/322/BP/3966/2006, dated 20.12.2006, which reads as under: “ The Vice-Chairman, Hyderabad Urban Development Authority vide reference 3rd cited has informed that the Hyderabad Urban Development Authority Officials have inspected the Sy.No.211 of Madeenaguda village and observed that it is unauthorized Gram Panchayat layout and requested to state how the building permissions were issued in the said layout without any valid layout approval and further instructed not to grant any further permissions in the said layout without prior intimation to Hyderabad Urban Development Authority. Again the Vice chairman, Hyderabad Urban Development Authority vide reference 2nd cited has informed that in further correspondence from Mr.I.Rajesh Kumar and Vigilance and Enforcement Department, it has been brought to the notice of Hyderabad Urban Development Authority that there are court cases pending in Hon’ble High Court with respect to Sy.No.211 of Madeenaguda village relating to title aspects and that a land grabbing case is also pending before special court under A.P.land Grabbing (Prohibition) Act in LGC No.14/2004 and the court has issued orders in I.A.No.361/2004 to maintain status quo for the same. Therefore, the Vice Chairman, Hyderabad urban Development Authority has desired to keep the permission issued in plot Nos.7 and 8 in Sy.No.211 of Madeenaguda in abeyance until the disposal of the cases and instructed that no further construction takes place on site under reference. The Vice Chairman, Hyderabad Urban Development Authority has requested this office to issue orders keeping the said permission accorded vide reference 4th and 5th cited in abeyance and take necessary action. In view of the above, the plans technically approved by the Vice Chairman, Hyderabad Urban Development Authority vide Lr.No.12400/P4/Plg/HUD/2005, dated 11.8.2006 and released vide this office Proc.G/322/BP/3966/2006, dated 23.8.2006 for construction of stilt + 5 floors on plot Nos.7 and 8 in Sy.No.211 of Madeenaguda village is kept in abeyance until the disposal of the court cases and further instructions from Hyderabad Urban Development Authority with instructions not to take up any further construction on the site under reference.” 9. I.Rajesh Kumar filed WPMP.No.1023 of 2007 seeking his impleadment as party respondent in W.P.NO.27349 of 2006. The said petition came to be allowed on 31.12.2007. At the cost of repetition I may state that R1 is Serilingampally Municipality represented by its Commissioner, 2nd respondent is HUDA represented by its Vice Chairman and 3rd respondent is I.Rajesh Kumar in W.P.No.27349 of 2006. 10. Sri.A.V.Dharma Reddy has sworn to the counter affidavit filed on behalf of 1st respondent-Serilingampally Municipality. It is stated in the counter affidavit of 1st respondent that HUDA has granted technical approval vide letter dated 11.8.2006 for proposed construction of stilt + five floors in Plot Nos.7 and 8 in Sy.No.211 of Madinaguda village, R.R. District and forwarded to the respondent-Municipality for necessary release and sanction of the said plans. Plans came to be released after collecting the prescribed fee vide proceedings No.G/322/BP/3966/2006, dated 23.8.2006. 11. Sri.P.Venkat Rama Reddy has sworn to the counter affidavit filed on behalf of 2nd respondent-HUDA. It is stated in the counter affidavit that I.Rajesh Kumar filed objection petition on 20.11.2006 and in the mean while the Regional Vigilance Officer Hyderabad (Rural) under letter in Rc.No.489/Rv & EQ-HR/D.W/CC/05, dated 19.10.2006 informed that an enquiry being taken up pertaining to lands situated in Sy.No.211 of Madinaguda village regarding illegal/unauthorized lay out permissions granted by the Municipality. Para 5 and 6 of the counter needs to be noted and they are: “ 5. It is submitted that the Hyderabad Urban Development Authority in Procgs.No.8412/P8/HUDA/99, dated 30.8.99 had taken a decision that whenever building permission either for the individual or residential apartment or any other permission to be accorded in residential use zone in accordance with the notified land use as per the master plan/zonal development plan and in an unauthorized layout wherein some of the plots were already covered by the residential developments the proportionate development charges for the plot area of the applicant should be levied as per the rules. Subsequently the building committee had taken decision on 31.1.2000 to collect proportionate 10% open space charges while according the technical approval in an unauthorized layout. It is submitted that where there is development over the land in an unauthorized layout the authority as well as the municipalities have been granting the building permission by collecting 10% of open space charges. 6. It is submitted that the allegation that the order of abeyance was passed arbitrarily is denied and the same is invented for the purpose of the present application. The building permission granted earlier was kept in abeyance taking into consideration the pending court cases and the communication made by the Vigilance and Enforcement officer. The allegation that the work has been going on for the past over 4 months and the petitioners spent more than 50 lakhs is factually incorrect and the same is denied…..” 12. The case of 3rd respondent-I.Rajesh Kumar, as spelt out in the affidavit filed in support of the implead petition being WPMP.No.1023 of 2007 in W.P.No.27349 of 2006, in brief, is : S.18 of A.P.Municipalities Act, 1965 r/w S.13(4) of A.P. Urban Areas Development Act, 1975 bars for granting building permission in a lay out not approved by the concerned authorities. The petitioners sought to construct a multi storied building in an extent of Ac.4.27 guntas in Sy.No.211 of Madinaguda village in respect of which an order of status quo is in operation vide I.A.No.361 of 2004 in LGC.No.14 of 2004 on the file of Special court under A.P. Land Grabbing (Prohibition) Act. In nutshell his plea is that in view of the status quo order granted by the Special Court, building permission granted to the petitioners needs to be cancelled and accordingly the authorities are justified in keeping the building permission granted to them in abeyance. 13. Parties herein after are referred to as they are arrayed in W.P.No.27349 of 2006 for the sake of convenience. 14. Heard learned counsel appearing for the parties. 15. Learned counsel appearing for the petitioners submits that the petitioners paid necessary charges as demanded by HUDA and thereupon the HUDA scrutinized the building permission application and forwarded the same to the Commissioner, Serilingampally Municipality for taking necessary action and thereupon the Commissioner, Serilingampally Municipality accorded building permission under proceedings dated 23.8.2006. He further submits that keeping in abeyance the proceedings dated 11-8-2006 by the Commissioner, Serilingampally Municipality on the ground of pendency of L.G.C.No.14 of 2004 cannot be sustained since the petitioners are not parties to L.G.C.No.14 of 2004 and that 3rd respondent being aware of the petitioners’ possession over plot Nos.7 and 8 did not choose to implead them as parties to L.G.C.No.14 of 2004. He would also contend that initially lay out in respect of S.No.211 was approved by the Gram Panchayat and subsequently necessary developmental charges came to be collected by HUDA from the individual plot owners while according approval for the building permission applications. 16. Learned Standing Counsel appearing for R2 submits that the building permission released under proceedings dated 11.8.2006 in respect of plot Nos.7 and 8 came to be kept in abeyance in view of the status quo order passed in L.G.C.No.14 of 2004 and thus the action of Commissioner, Serilingampally Municipality cannot be faulted. 17. Learned counsel appearing for 3rd respondent submits that there is no approval for the lay out in respect of S.No.211 by the Gram Panchayat and therefore the lay out in respect of S.No.211 can be termed as unauthorized and in which case permissions cannot be granted for constructing residential houses therein. He took me to G.O.Ms.No.411 M.A, dated 27-9-1975 whereby and whereunder certain areas came to be notified u/s 13(1) of A.P.Urban Areas (Development) Act, 1975. In the said government order, Madinaguda village finds place at S.No.196. The text of the government order reads as under: “ The Andhra Pradesh Urban Area (Development) Act, 1975 (Act No.1 of 1975) will come into force in the State of Andhra Pradesh with effect from 1-10-1975 by virtue of the notification to be published as required under sub-section (3) of the section 1 of the Act in the A.P. Gazette extraordinary dated 29.9.1975. The Special officer, Urban Development Authority has submitted proposals for declaration of the development area to be notified by the Government under section 13(1) of the Act taking into consideration, the studies conducted by the Director of Town Planning for the purpose of preparing the Development Plan for the Hyderabad Metropolitan Region, (i.e. Master Plan) the delineation report of Hyderabad Metropolitan District prepared by the Director of Town Planning in the year 1967 and also the areas where industries have been located outside but in the vicinity of the cities of Hyderabad and Secunderabad. The Government have examined the proposals and consider that it is expedient to notify the areas covering broadly an area of about 600 sq.miles as detailed in Schedule to the Notifications appended hereto, which are meant for development under the provisions of the Andhra Pradesh Urban Areas (Development) Act, 1975. The appended notifications shall be published in the Andhra Pradesh extraordinary Gazette, dated 1-10-1975. The Director of Printing, Stationary and Stores Purchase is requested to arrange for the publication of the Notifications accordingly and supply to the Government sufficient number of copies of the Gazette for their reference.” 18. Learned counsel by referring to the additional counter affidavit of 1st respondent heavily criticized the contents therein. What he means to say is that the affidavit is contrary to the material brought on record. Much emphasis has been laid on paras 3 and 4 of the counter affidavit to convince me that the facts stated therein are incorrect. They read as hereunder: “ 3. It is respectfully submitted that Serilingampally Municipality was constituted in the year 1987. Prior to 1987, Hafeezpet Gram Panchayat was in existence of which Madeenaguda village was an hamlet. From the available records, the following facts have come to the notice. (a) A copy of the layout approved by the then Gram Panchayat in respect of the land in Survey No.211 of Madeenaguda village. (b) Most of the plots were purchased in this layout prior to 1987 and were also registered prior to 1987. (c) Two building permissions were sanctioned by the then Gram Panchayat in this layout. (1) For Plot No.103 in an extent of 200 square yards in favour of Sakuntala Waghray was granted by the then Gram Panchayat by proceedings dt.27.12.1980. (2) For Plot No.18 in an extent of 300 square yards in favour of K.V.S.N.Raju was granted by the then Gram Panchayat by proceedings dated 10.12.1986, these two proceedings were supplied by the parties. (d) Two building permissions were sanctioned by the Serilingampally Municipality in 1991, 1992 vide proceedings Nos.H/BA/380/91, dated 29.11.1991 and H/BA/641/92, dt.29.2.1992 in favour of K.V.S.N.Raju in Plot No.18 for construction of 1st floor as the original permission (i.e. ground floor) was granted by the then Gram Panchayat by proceedings dt.10.12.1986. The proceedings dt.29.2.1992 was issued by this Municipality for construction of residential house in H.No.1-59/A, and the entries were also made in the building permission application register maintained by this Municipality. 4. It is respectfully submitted that from the above information it is clear that a layout was formed and approved by the then Gram Panchayat prior to 1987. When the Municipality was constituted in the year 1987 the then Gram Panchayat at Hafeezpet did not handover the records properly. Therefore, this Municipality was not having layout copy in respect of Survey No.211 of Madeenaguda village of Hafeezpet Gram Panchayat. Hence, it is understood that when the plot owners applied for building approvals, they had submitted a layout approved by the then Gram Panchayat.” 19. The material brought on record clearly established that S.No.211 of Madeenaguda village came to be converted into plots much prior to 1987. Madeenaguda was in Hafizpet Gram Panchayat. The Hafeezpet Gram Panchayat considered the building permission application of some