Telangana High Court Relies On SC Judgment In Supertech Case, Orders Demolition Of Commercial Complex Built On Community Park Land

The Telangana High Court has ordered for the demolition of a commercial complex that was constructed on the land assigned for setting up of community park, holding that the competent authority had not modified the development plans.

"A modification to the plan can be made only by Hyderabad Urban Development Authority under Section 12 of the 1975 Act [Telangana Urban Areas (Development) Act], which is the competent authority to modify the original development plan in the manner indicated under Section 12(3) to 12(5) and Rule 13 of the 1977 Rules..." 

The Division Bench of Chief Justice Alok Aradhe and Justice N.V. Shravan Kumar heavily relied on the Supreme Court's judgment in the Supertech Twin Towers Demolition case and held that the planning authority is under obligation to ensure that the development plans are adhered to. It reiterated that there is a fundamental duty on the State to protect the environment. 

"The protection of the environment is a duty cast on administration as well as the Court. The Hon’ble Supreme Court in Supertech Limited (supra) has held that inaction of the planning authorities of its obligation to ensure development of land in accordance with the plan results in infraction of the rights of the residents and their quality of life is directly affected." 

In its 84-page judgment, the Court referred to a catena of judgements and held that the change in use of land from greenbelt to commercial is against the Doctrine of Public Trust, a doctrine that has grown from Article 21 of the Constitution. "The Hon’ble Supreme Court held that change of use of area in question from greenbelt to residential one is contrary to the public trust doctrine. It was further held that the land in future shall be used for the purposes of park only." 

Background:

Initially, the petitioners had approached the Court in 1997 seeking direction to stop the construction of commercial complex on the land that was allotted for the community park in the Indian Airlines Employees Housing Colony.

The claim of the petitioner was that 600 yards of the land on which the erstwhile Andhra Pradesh Housing Board was constructing the multi-story complex was in fact allotted for a park.

Two writ petitions were initiated before the High Court by the petitioners in 1997 and 1999 seeking direction against the construction. 

It was also brought to the notice of the Court that the Construction company that had undertaken before the Municipal Corporation Hyderabad (MCH) to construct the Commercial Complex had obtained permission for construction by submitting an undertaking that if the land upon which construction was supposed to happen was found to be land designated for park, the permission would deemed to be retracted. 

The Construction Companies on the other hand contended that the development maps had been amended by APHB and according to the amendment the construction was carried out. They stated that all construction was being done in accordance with the amended plan.

The petitioners therein contended that although the Construction Companies might have followed the amended plan, they had no authority to amend the development plan. It was submitted that power to amend the development map, was only vested with the Hyderabad Urban Development Authority (HUDA). 

The High Court upheld that contention that the power to amend the maps vested solely with HUDA.

After an SLP against the order reached the Supreme Court, it remanded the matters back for consideration afresh, giving rise to the present round of litigation.

The official respondents, i.e State government, APHB, HUDA and MCH conceded with the claim of the petitioners and stated that no authorisation was given for the construction.

The Construction Company however contend that the construction was being made in accordance with the revised development layout.

The Court referred to various sections of the Andhra Pradesh Housing Board Act, 1956, the Telangana Housing Scheme (Acquisition of Land) and the Telangana Urban Areas (Development) Act, 1975.

The Bench observed that the Act of 1975 clearly stipulates only HUDA has the power to make layouts, modify layouts and declare land for development. Further, Section 23 of the 1956 Act states that no construction can be made in contravention with the development layout. 

Going back to the 1975 Act, the Court noted that section 41 of the statute imposes penalty and prison time on anybody constructing in contravention of the town plans and section 43 authorizes HUDA to stop unauthorized construction. 

A series of judicial pronouncements were taken into consideration to ultimately hold that no construction can be permitted on lands allotted for the betterment of the environment. Further that every citizen has the right to have equal access to such gifts of nature. 

Adding to that, the Court noted that it is the responsibility of the planning authority to make sure that construction is happening in accordance with the layout. 

"A breach by planning authority of its obligation to ensure compliance with building regulations is actionable at the instance of residents whose rights are infringed by violation of laws." 

After a thorough examination of the facts and law, the court held that the only competent authority to modify town layouts was HUDA. "The APHB is only a development agency and does not have any power to revise the layout without approval of HUDA."

The Court also reiterated that no construction can be permitted on park land. "Therefore, it is axiomatic that the construction of a shopping complex cannot be permitted in an area which is earmarked as a park."

Considering the facts of the case, the Bench directed to set aside the permission granted for construction, directed to demolish the commercial complex under supervision and subsequently directed Hyderabad Metropolitan Development Authority (HMDA) to undertake the construction of a park in the suit land within 3 months.

P. Venkateshwaralu & Ors vs State of Andhra Pradesh & Ors.

Counsel for the petitioner in W.P.No.12538 of 1999: N.Vijay

Counsel for the petitioner in W.P.No.25738 of 1997: Siddharth Sharma

Counsel for the respondents: Pasham Krishna Reddy,

Government Pleader for Municipal Administration and Urban Development Department.

J.Prabhakar senior Counsel for APHB.Resu Mahender Reddy Senior Counsel representing Ravinder Reddy Muppu, for respondents No.5 and 6 in W.P.No.12538 of 1999

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