A.P. HOUSING BOARD

ADARSHA WELFARE ASSOCIATION AND ANR.

APRIL 13, 2007

[C.K. THAKKERANDLOKESHWARSINGHPANTA, JJ.]

Housing:

Andhra Pradesh Housing Board Act, 1956-Appel/ant Housing Board C acquired land for public purpose-Portion of land earmarked for 'public park' encroached upon by hutment dwellers-Direction of High Court that till such encroachment was removed, Appellant Board cannot make construction in the proposed Commercial Zone under the plan-Held: High Court erred in issuing such directions, since the Commercial Zone was in D accordance with the sanctioned layout-Board had power to construct commercial complex as per the sanction granted by authorities-High Court was not justified in interfering with the lawful action of the Board.

Appellant-Housing Board acquired land for public purpose. However a portion of the land earmarked for 'park area' was encroached by hutment E dwellers. The petitioner-Resident Welfare Association filed PIL before the High Court pleading that since the land earmarked for park was not available, proposed Commercial Zone under the Development Plan should not be permitted to be used for that purpose by the Appellant Board.

The High Court observed that the Commercial Zone was in accordance F with the sanctioned layout but ecology must be given primacy and thereafter allowed the writ petition, directing that till encroachment of land earmarked for public park was removed, commercial activities cannot be permitted to be undertaken at the site as per layout. Hence the present appeals.

Allowing the appeals, the Court

HELD: The High Court committed an error of law in issuing the directions, particularly after recording a finding that construction of Commercial Zone was in accordance with layout and after obtaining sanction from the competent authorities under the Act. When the provisions of the

A Act have been followed and the land which is required to be used as per layout has been used strictly in consonance with such layout, it cannot be said that by doing so, the Housing Board has committed any illegality. Once the High Court had recorded the finding that the land in question was earmarked for commercial purpose, it must be held that the Board had power to construct

B shopping complex as per the requisite sanction granted by the authorities.

No objection can be taken against such a course and the High Court was not justified in interfering with the lawful action of the Board.

[Paras 6 and 71 (136-B-E)

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 6156-6157 of c 2002.

From the Judgment and Order dated 03.10.2001 of the High Court of !!-- Judicature of Andhra Pradesh at Hyderabad in W.P. No. 18755 and 19215 of 2001.

D P.S. Naarasimha, A vijeet Kr. Lala and Anil Kumar Tandale for the Appellant.

V. Sridhar Reddy and Abhijit Sengupta for the Respondents. \ A

Manoj Saxena, Rajnish Kumar Singh, Rahul Shukla and T.V. George for E the State.

The Judgment of the Court was delivered by

C.K. THAKKER, J. I. These appeals are filed by the Andhra Pradesh Housing Board against the judgment dated October 3, 2001 in Writ Petition F Nos. 18755 and 19215 of2001. The above petitions were filed by the petitioners Adarsha Welfare Association and Vengal Rao Nagar (Housing Board Colony), - Allottees and Residents Association in Public Interest Litigation (PIL). A writ of mandamus was sought against the Housing Board making available open space in Vengal Rao Nagar Housing Board Colony at Hyderabad by restraining it from making any construction in the 'lung space' area earmarked for 'park' G contrary to the provisions of the Andhra Pradesh Housing Board Act, 1956 (hereinafter referred to as 'the Act').

2. The facts leading to the present controversy have been set out by us extensively in Civil Appeal No. 3942 of 2002 and companion matters

H decided by us today and it is not necessary to repeat them in this case.

Suffice it to say that the Housing Board had acquired forty-five acres of land

AP. HOUSING BOARDv. ADARSHA WELFAREASSOCIA TION [C.K. THAKKER, J .] 135

for public purpose, viz. for construction of dwelling units for its employees A __, (Vengal Rao Nagar Housing Board Colony). The Housing Board, however, cou[d get possession only of forty-three acres of land and the possession of land admeasuring two acres could not be obtained because of encroachment over the land by hutment dwellers. Construction was to be made as per the layout which was approved by the Town Planning Authorities of Municipal B Corporation of Hyderabad (MCH) in accordance with the provisions of the Act. Spaces were also eannarked for Parks, Commercial Community Centres as also for Green Area. The Housing Board could not allot a portion of land ·

\ eannarked for park area since it was encroached by hutment dwellers. The grievance of the petitioners before the High Court was that since the land earmarked for park was not available, Commercial Zone under the plan should c not be pennitted to be used for that purpose by the Housing Board unless

.... - the 'green area' is made available. Till then the said area must be ordered to be kept open.

3. In the affidavit in reply filed by the Board, it was stated that the area which was earmarked for Commer:.:ial Zone under the Development Plan under D the Act was sought to be utilized for the said purpose. Such use could not be said to be contrary to law and prayer of the petitioners could not be t granted. Commercial complex is also a public purpose and when the area is '.>csought to be used for the purpose for which it was reserved and administrative sanction has been accorded by the Government as well as by Municipal E Corporation of Hyderabad (MCH), no objection could be raised against such legal project. It .vas, therefore, submitted that the petitions deserve to be dismissed.

4. The High Court, considering the relevant provisions of the Act, observed that the Housing Board was right in submitting that Commercial F Zone was in accordance with layout for which sanction was granted by the Authorities under the Act. But relying on the decisions of this Court in MC.

Mehta v. Union of India & Ors., [2001) 4 SCC 577 : JT (2001) 3 SC 207,

Bangalore Medical Trust v. B.S. Muddappa & Ors., AIR (1991) SC 1901 : JT

(1991) 3 SC 172 and Ml. Builders Pvt. Ltd. v. Radheshyam Sahu & Ors., JT G

(1999) 5 SC 42, the High Court held that ecology must be given primacy and since there was unauthorized encroachment of land eannarked for public park,

""'

till such encroachment is removed, commercial activities cannot be pennitted to be undertaken at the site as per layout till sufficient land is made available for public park. According to the High Court 'lung space' must be available for the residents of the locality.

5. The High Court concluded; "Once the requisite 'lung space' is provided to the residents of the area, the State may proceed to make constructions in the proposed shopping complex area." The petition was accordingly allowed and necessary directions were issued to the Housing Board. The Housing Board has challenged the said decision.

6. It was submitted by the learned counsel for the appellant-Board that the High Court committed an error of law in issuing the above directions, particularly after recording a finding that construction of Commercial Zone was in accordance with layout and after obtaining sanction from the competent authorities under the Act. It was also submitted that reliance on the decisions C referred to by the High Court, in the facts and circumstances of the case, was not proper.

7. In our opinion, the submission is well founded and deserves to be upheld. When the provisions of the Act have been followed and the land which is required to be used as per layout has been used strictly in consonance D with such layout, it cannot be said that by doing so, the Housing Board has committed any illegality. Once the High Court had recorded the finding that the land in question was earmarked for commercial purpose, it must be held that the Board had power to construct shopping complex as per the requisite sanction granted by the authorities. No objection can be taken against such a course and the High Court was not justified in interfering with the lawful E action of the Board.

8. For the foregoing reasons, in our opinion, the appeals deserve to be allowed and are accordingly allowed by setting aside the order passed by the High Court. In the facts and circumstances of the case, however, there shall F be no order as to costs.

B.B.B.

Appeal allowed.