+THE HON’BLE SRI JUSTICE N.V. RAMANA %W.P.Nos. 5386 of 2008, 21354, 21749 and 21750 of 2009 *Date: 05-08-2011. Between : R. Srinivas Kumar and others. ……Petitioners And The Greater Hyderabad Municipal Corporation rep. by its Deputy Commissioner, and others. …..Respondents For the petitioners: 1) Mr. P. Veera Reddy (WP.No.5386/08) 2) Mr. G. Vasantha Rayudu (WP.No.21354/09) 3) Mr. G. Ravi (W.P.Nos.21749 and 21750/09) For the Respondents: Mr. R. Radha Krishna Reddy Mr. Srinivasa Rao Velivela Mr. M. Dhananjay Reddy G.P. for Home Smt. Kalpana Ekbote The Advocate General < Gist: > Head Note: ? CITATIONS: 1(1974) 2 SCC 506 2 (1995) 2 SCC 577 3 (1995) 6 SCC 127 4 1995 Supp. (4) SCC 595 5(1991) 3 SCC 341 6 (1995) 5 SCC 762 7 (1997) 6 SCC 370 8 (1999) 6 SCC 464 9 (2004) 8 SCC 733 10 (2009) 15 SCC 705 11(2010) 2 SCC 27 12 AIR 1986 SC 180 13 AIR 1997 SC 152 14 (2011) 9 SCC 195 15 (2009) 17 SC 332 16 2010 (5) CTC 257 THE HON’BLE SRI JUSTICE N.V. RAMANA W.P. Nos. 5386 of 2008, 21354, 21749 and 21750 of 2009 Common order: The key issue raised in this batch of writ petitions is the failure of the Greater Hyderabad Municipal Corporation to comply with the elementary norms of civic administration. W.P. No. 5386 of 2008 The Petitioner states that he purchased two plots bearing Nos.10 and 11 in Sy. No. 215/A, Safari Nagar, Kondapur village, and having constructed a house in the said plots, is residing therein. According to him, as per the colony layout sanctioned by HUDA, there is a 40 feet approach road to their colony from Old Bombay main road. Every Sunday, petty vegetable and fruit vendors occupy the flanks of the said approach road and conduct their business. As a result, the passage of the approach road gets reduced thereby causing inconvenience to the general public, road users and movement of vehicles. While the matters stood thus, the Petitioner states that the Respondents - Greater Hyderabad Municipal Corporation (hereinafter referred to as the ‘Corporation’) issued notification dated 04.03.2008 for auctioning the leasehold rights to collect fee from vegetable, fruit, fish and mutton vendors. The auction was scheduled on 15.03.2008 at 11:00 A.M. According to the Petitioner, the Respondents are trying to legalize the unauthorized business, which the vegetable and fruit vendors were hitherto conducting on the road in question every Sunday by issuing the above notification. The Petitioner further states that the roads are meant for the movement of vehicles and for the benefit of general public, particularly the residents of the colony. The authorities of the Corporation under the Greater Hyderabad Municipal Corporation Act, 1955 (hereinafter referred to as ‘the GHMC Act’) are under an obligation to identify and earmark places for conducting market but they cannot permit the conducting of vegetable and fruits business on the roads otherwise meant for use by pedestrians and movement of vehicles. The Petitioner states that he, along with eleven others, made a representation to the respondents-Corporation requesting them to shift the market from the road in question but no action thereon had been taken. Instead, the Respondents are proceeding to conduct the auction as proposed. The Petitioner states that if the Respondents are allowed to conduct the auction they will be put to a lot of inconvenience. Hence, the Petitioner seeks to declare the impugned notification as being illegal and arbitrary, and consequently to set aside the same. The Deputy Commissioner, Serilingampally filed a counter stating that Kothaguda weekly market is being conduct every Sunday for the last three years. The auction of weekly market is conducted every year. The vegetable and other petty business persons conduct their business along the road side margin of Old Bombay Road of Kondapur and along the internal road which leads to MPP School, Kondapur. While admitting the issuance of the impugned auction notification, the Deputy Commissioner contended that vegetable markets are established for the convenience of and in the interest of the residents of that area. The vendors conduct their business on the pavements every Sunday evenings and they do not cause any inconvenience to the road users. The auction of the weekly market is complete and it is allotted to the highest bidder. She admitted that a representation has been received from the residents of the locality for shifting of the market, but she contended that the same is under active consideration. Hence, she prayed that the writ petition be dismissed. W.P. No. 21354 of 2009 The Petitioner claims to be the President of Model House Space Owner’s Association. He states that the total extent of land of Model House complex is 4,040 Sq. yds. The Government acquired land to an extent of 588.77 sq. yds. and 281.23 Sq. yds. for formation of a new road from the main road to Dwarkapuri Colony and for widening the main road respectively. The Model House Complex (‘Complex’) constructed in the balance extent of 3,170 Sq. yds. in 1986. The Petitioner states that the Government did not pay any compensation for the acquisition of the land. The Petitioner states that at the time of constructing the Complex five metres open space was earmarked for parking of the vehicles of the visitors coming to the shops located in the Complex towards the western side from the Complex to the road. The said open space is being used exclusively by the members of the Petitioner- Association since the construction of the Complex. While so, the Petitioner states that the Respondents- Corporation has issued proceedings dated 31.01.2009 granting leasehold rights to contractor (G. Uma) to collect parking fee from the owners of the vehicles who park their vehicles in the parking area of the Complex, which is in exclusive possession and enjoyment of the Petitioner-Association. The Petitioner states that they made representation dated 14.04.2009 requesting the Respondents to cancel the leasehold rights granted to Smt. G. Uma, but no action thereon had been taken. Hence, the Petitioner seeks to declare the action of the Respondents in auctioning the leasehold rights in favour of Smt. G. Uma, as illegal and arbitrary. The Estate Officer of the Corporation filed a Counter stating that before auctioning the parking area in question, they have obtained feasibility report of 49 parking lots located in the twin cities of Hyderabad and Secunderabad from the Traffic Department and also from the Area Inspector concerned. The parking area in question is located on a public road earmarked for providing parking space to ease out traffic problems in the area. Based on the feasibility report, they allotted the parking lot in question to the contractor, for collecting fee from the owners of the vehicles, vide proceedings dated 31.01.2009, for a period of one year. He further stated that M/s Esvee Builders (‘Builders’), who constructed the complex, vide their letter dated 26.02.2006 informed that they have lost an extent of 900 Sq. yds. from 4,040 Sq. yds. of land for widening of the road and for the formation of new road. The Builders also stated that they have handed over the setback area to the Corporation voluntarily and the same has been merged for the formation of road. As per the sanctioned plan, the Builders left an area admeasuring 22 x 17 feet, excluding the road area abutting Dwarakapuri colony. The Builders have handed over the said land to the Corporation in the year 1986, which is now being used as parking area. He contended that since the parking area belongs to the Corporation, the Petitioner has no right to seek cancellation of the leasehold granted to Smt. G. Uma, to collect parking fee from the vehicle owners. W.P. No. 21749 of 2009 The Petitioner is a resident of Andhra Colony, Manghalhat, Hyderabad and owns a house in the said colony. He states that the unofficial Respondent, who also owns land near the house of the Petitioner, started constructing a building comprising of cellar plus six floors in his land by encroaching the main road without leaving the setbacks. The balconies of his building are protruding onto the main road. On enquiry, the Petitioner came to know that the unofficial Respondent is constructing the building unauthorizedly and did not obtain any permission from the Respondent-Corporation. The Petitioner states that on 11.07.2009, he made a representation to the Respondent Corporation requesting them to take action against the unofficial Respondents, but the Respondents have not taken any action till date. Hence, he seeks directions to the Respondents- Corporation to take action against the illegal constructions being made by the unofficial Respondent. The Assistant City Planner of the Corporation, Circle-VII filed counter on behalf of GHMC stating that on 18.07.2009, the Petitioner made representation dated 11.07.2009 to take action against the unauthorized constructions being made by the unofficial Respondent. Acting on the said representation, he inspected the locality and found that the premise number given by the Petitioner in his representation is not in existence. On verification of the records it was found that the premises stands in the name of the wife of the unofficial Respondent, who obtained building permission vide permit No. 30/16, dated 11.05.2009 for construction of ground plus one upper floor, but she constructed cellar, ground plus four upper floors and also pent house, in violation of the sanctioned plan. Therefore, the Assistant City Planner issued notice dated 30.09.2009 under Section 452 of the GHMC Act to show cause as to why the unauthorized constructions should not be removed/pulled down. As she failed to submit explanation within the stipulated time, another notice dated 21.10.2009 under Section 636 of the GHMC Act was issued directing her to remove the unauthorized construction within 24 hours from its receipt, failing which, they will remove the same and recover the expenditure incurred for it from her. While so, the wife of the unofficial Respondent filed O.S. No. 4544 of 2009 on the file of the VI Junior Civil Judge, City Civil Court, Hyderabad seeking permanent injunction. She also filed an application in I.A. No. 500 of 2009 seeking temporary injunction. On contest, the same was dismissed by order dated 29.10.2009. Questioning the said order, she filed C.M.A. No. 158 of 2009 on the file of the III Additional Chief Judge, City Civil Court, Hyderabad, and obtained order of status quo. The Assistant City Planner contended that if the status quo order, passed in C.M.A. is set aside, they will remove the unauthorized constructions with the assistance of police. Hence, he prayed that the writ petition be dismissed. W.P. No. 21750 of 2009 The Petitioner is a resident of Andhra Colony, Manghalhat, Hyderabad. He states that adjacent to his house, the unofficial Respondent owns land. While so, the unofficial Respondent started constructing a building comprising of ground plus three floors and a pent house by encroaching on the main road without leaving the set backs, and the balconies of the building are protruding into the main road. The Petitioner made representation dated to the Respondents- Corporation on 11.07.2009 requesting to take action against the illegal constructions by the unofficial Respondent, but no action has been taken till date. Hence, he seeks to direct the Respondents-Corporation to take action against the unauthorized constructions being made by the unofficial Respondent. The Assistant City Planner of the Corporation filed a counter denying the contention of the Petitioner that they have not acted on his complaint. It is stated that the unofficial Respondent obtained permission for construction of stilt plus two upper floors from the Corporation vide Permit No. 164/76, dated 12.01.2009 in File No. 742/1/13/2008 but he proceeded with the construction of stilt plus ground plus three upper floors and pent house in violation of the sanctioned plan. That Respondent No.3, vide letter dated 10.08.2009, directed the unofficial Respondent to stop construction work and furnish copy of ownership and sanctioned plan for verification within three days. As the unofficial Respondent did not produce the same, he issued show cause notice dated 30.09.2009 under Section 452 of the GHMC Act directing him to show cause within seven days as to why the unauthorized construction of the building in the premises in question should not be removed. When the unofficial Respondent failed to furnish any explanation to the said show cause notice, he issued final notice dated 21.10.2009 under Section 636 of the GHMC Act, directing the unofficial Respondent to remove the unauthorized construction made in deviation of the sanctioned plan within 24 hours from its receipt failing which the Corporation will remove the unauthorized construction and recover the expenditure incurred from the unofficial Respondents. However, even before Respondent No.3 issued the above final notice, the unofficial Respondent filed suit in O.S. No. 4534 of 2009 on the file of the VI Junior Civil Judge, City Civil Court, Hyderabad, seeking permanent injunction restraining the Corporation and their men from interfering with the construction activities in the premises in question and including demolition of part of the property. In the said suit, the unofficial Respondent filed I.A. No. 495 of 2009. The Corporation having entered their appearance contested the said application by filing counter. In spite of the same, the VI Junior Civil Judge, City Civil Court, Hyderabad, granted temporary injunction order dated 30.10.2009. It is further contended that when interim injunction in the above I.A. is vacated, the Corporation will initiate further action for removal of unauthorized constructions by obtaining police protection since the area where the premise in question is situated is a sensitive area. The unofficial Respondent filed counter stating that the house of the Petitioner is separated by nearly ten houses. He denied the contention of the Petitioner that he is constructing of the building without obtaining permission. He contended that the plot in which they are making construction belongs to him and his wife and he commenced the construction after obtaining permission from the Respondents Corporation. He contended that the construction of the building is over. The Respondent Corporation issued notice dated 22.10.2009 under Section 636 of the GHMC Act. When the Respondents tried to interfere with their possession and enjoyment, they filed O.S. No. 4534 of 2009 on the file of VI Junior Civil Judge, City Civil Court, Hyderabad, and obtained injunction on 23.10.2009. According to the unofficial respondent, the Petitioner demanded money, and as his demand was not met, he came up with the present writ petition. On 12.10.2009, this Court directed appearance of the Commissioner of the Corporation to ascertain whether he framed any guidelines and time frame to deal with the complaints of illegal/unauthorized constructions. The Commissioner of the Corporation submitted that he will draft a plan constituting proper machinery to look into the complaints of illegal/unauthorized constructions and fix the responsibility on the officers who fail to act on such complaints. On 20.11.2009, the Commissioner of the Corporation filed procedural guidelines with regard to taking of action on complaints of illegal/unauthorized constructions. When the Writ Petitions were taken up for hearsay on 09.10.2009, the Commissioner of the Corporation took the stand that it is the duty of the Traffic Police to regulate the traffic, this Court suo motu impleaded the State Government and the Traffic Department as party-Respondents. On 14.10.2009 it was brought to the notice of the Court by the Commissioner of the Corporation that they have identified certain places in the city as parking lots at the request of the Traffic Police. This Court appointed four Advocate Commissioners to verify whether the said parking lots are functioning properly in easing the traffic or adding to the congestion of traffic. The Court directed them to select some places and furnish copy of the same to the Commissioner of the Corporation, so as to make a joint inspection and submit a Report. The Advocate Commissioners, having inspected several parking lots, filed their report along with photographs stating that the co-ordination and proper planning between the Corporation and Traffic Police is essential to make the roads truly useful for the citizens. They made the following suggestions: a) It is appropriate to make proper and effective Rules and Regulations to regulate the traffic, particularly in the commercial zones. b) Strict vigil by the competent authority shall be kept on the parking slot, as well as on the footpaths in front of business establishments. c) Necessary rules for effective co-ordination between the police and the Corporation. d) Appropriate penal provisions for any violation of the traffic rules. The Commissioner of the Corporation submitted his report after inspection of some parking lots. This Court upon perusing the same felt that there is traffic congestion due to lack of co-ordination between the Traffic Police and officials of the Corporation and by an Order dated 20.11.2009, suo motu impleaded the Joint Commissioner of Police, Traffic, Hyderabad City as party-Respondent. On 14.06.2010, the learned Government Pleader for Home submitted that the Principal Secretary to the Government in the Home Department will conduct a meeting of the officials of the Traffic Department and the Corporation, and after examining the report of the Advocate Commissioners will come up with concrete guidelines for curbing the traffic congestion in the city. On 13.07.2010, the Government Pleader for Home placed letter dated 09.07.2010 addressed to him by the Principal Secretary to the Government with regard to the meeting conducted by him to look into any lack of co- ordination between the Corporation and Traffic Police regarding identification and allotment of parking slots in Hyderabad. As the minutes of the meeting were incomplete, this Court directed the Government to file detailed counter-affidavit indicating the required details. The Advocate Commissioners on 06.08.2010 reported that their inspection revealed that still there are illegal parking places and collection of parking fee is going on. On 09.09.2010, the learned Standing Counsel for the Corporation, submitted that commercial activities, such as schools, colleges, hospital and hotels, in residential zone is resulting in traffic congestion and that the Government has permitted such commercial activities in the residential zone by issuing G.Os. In view of this stand taken by the Standing Counsel for the Corporation, this Court suo motu impleaded Hyderabad Metro Development Authority as party-Respondent. Pursuant to their suo motu impleadment, the Respondents, namely, the Government, Traffic Department and Hyderabad Metro Development Authority filed their detailed counters. The Deputy Secretary to the Government in the Municipal Administration Department, filed counter stating that the Development Plan for the erstwhile Municipal Corporation of Hyderabad Area (HMDA Core area) was sanctioned by the Government vide G.O. Ms. No. 414, M.A., dated 27.09.1975. Hyderabad Metro Development Authority (hereinafter referred to as ‘the HMDA’), previously called as Hyderabad Urban Development Authority, was constituted under the Hyderabad Metro Development Authority Act, 2008 (hereinafter referred to as ‘the HMDA Act’), by the State Legislature. The HMDA under the Hyderabad Metro Development Authority Act is required to prepare Master Plan and Zoning Regulations in respect of the area falling within its jurisdiction. Zonal Development Plans for zones, prepared by HMDA were approved by the Government from time to time from 1980 to 1995. The said zonal Development Plans give the details of land uses. The Zoning Regulations for the erstwhile Hyderabad Municipal Corporation, were approved by the Government or AP vide G.O. Ms. No. 916, MA, dated 11.08.1981. Under the said Zoning Regulations, the activities permissible in each zone are specified. Subsequently, certain roads in the core area of Municipal Corporation of Hyderabad were declared as commercial roads vide G.O. Ms. No. 766, dated 18.10.2007 was issued by the Government in exercise of the power conferred on them under Section 12(2)(3) of the A.P. Urban Areas Development Act, 1975 read with Rule 13(a) of the Urban Development Authority (Hyderabad) Rules, 1975. The Government categorized and notified commercial roads into A, B and C categories, for the purpose of allowing commercial activities/buildings by levying impact fee thereon. Activities permitted under category ‘A’ roads include - (i) multiplexes, (ii) shopping malls, (iii) cinema theatres, (iv) wholesale trade, and (v) all other commercial uses permitted under category ‘B’ roads. Under category ‘B’ roads, the activities permitted are (i) all retail shopping, (ii) all service establishments, petrol filling stations and motor repair garages, (iii) shopping complexes, (iv) hotels, (v) hospitals, (vi) function halls, and (vii) all commercial activities permissible in category ‘C’ roads. The activities permissible in category ‘C’ roads are (i) office complexes, (ii) Information Technology enabling services complexes, (iii) petrol filling stations, (iv) restaurants and eateries, fast food joints and (v) convenience shopping activities. It is further stated that the Master Plan was modified and approved by the Government for the peripheral corporation area pursuant to merger of municipalities into the Corporation vide G.O. Ms. No. 288, dated 03.04.2008, and the land use Zoning Regulations, have been classified as (i) residential zone, (ii) commercial zone, (iii) manufacturing zone, (iv) public and semi-public zone, (v) multiple use zone, (vi) public utilities, (vii) open space zone, (viii) conservation zone, (ix) forests, (x) water bodies, (xi) special reservations (heritage buildings and areas, military lands, others) and (xii) transportation and communication zone (roads, railways, airports, bus depots and truck terminals). It is further stated that the Development Plan of HMDA was revised in2010 and each category of zone and the permitted uses have been declared vide G.O. Ms. No. 363, dated 21.08.2010. As per the said Development Plan small commercial activities such as banks, shops, clinics, educational institutions etc., are permissible in residential areas are permissible in residential zones. It is further stated that the Regulations were prepared by the Government in exercise of the power conferred on them under the HMDA Act and the Rules made thereunder. The Government is empowered to frame Regulations and modify the Master Plans based on the recommendations of the Development Authority. As per the Master Plan, prepared by HMDA, as approved by the Government, the local authority, namely the Corporation, has to regulate and to take steps for violations thereof. The Corporation is the local authority to grant layout, approvals, building permission (residential/commercial etc.) and take other necessary steps as per the Zone Regulations and master plan prepared for the area. It is further stated that certain commercial activities are permissible in residential areas subject to certain restrictions. Therefore, being the local authority the Corporation has to regulate keeping in view the restrictions imposed under the Master Plan and zoning regulations and in tune with the GHMC Act. It is contended that the running of schools, colleges, hospitals etc. is permissible in residential zones as per both the Zoning Regulations of 1981 and the latest zoning Regulations of revised Development Plan. However, certain roads are declared as commercial roads and the plots abutting the said roads can deal in commercial activities as are notified therein. On behalf of HMDA, its Director (Planning) filed counters in all the four writ petitions, making common averments. He denied the submission made by the Standing Counsel for the Corporation that the traffic problem is being caused on the road because the Government has permitted commercial activities such as running of schools, colleges, hospitals and hotels in residential zone. He relied on the recommendations of HMDA and contended that if any person is making use of a premises or building for a purpose other than for which it was earmarked, the Corporation should take action, and the Corporation is the sole competent body to take action against the owners of such premises. He stated that the Hyderabad Urban Development Authority was constituted under the provisions of A.P. Urban Areas Development Act, 1975. The Government of Andhra Pradesh, in exercise of the power conferred on them by Section 59(1) thereof, issued G.O. Ms. No. 916, M.A. Department, dated 11.08.1981, A.P. Urban Areas (Development) Act, 1975, framing Hyderabad Urban Development Authority Zoning Regulations, 1981, earmarking the uses of the lands. The Government of Andhra Pradesh enacted the Hyderabad Metropolitan Development Authority Act, 2008, which came into force w.e.f. 24.08.2008. Upon its coming into force, the Government issued G.O. Ms. No. 572, MA & UD Department, dated 25.08.2008, dissolving Hyderabad Urban