C KULSUM REDDY Vs. STATE OF ANDHRA PRADESH

JUDGEMENT

(1.) This Writ Petition has been filed in public interest by five persons challenging the validity of G.O.Ms.No. 419, Municipal Administration & Urban Development (ML) Department, dated 30-6-1998 (sic. 30-7-1998). By this G.O. the Government laid down a scheme under which unauthorized constructions made till 30th June, 1998 (sic. 30th July, 1998) could be regularized. The petitioners claim to be persons to whom the environment was dear. The petitioner No. 1 is a retired Reader in Political Science from Zakir Hussain College, New Delhi. She is a member of 'the Society for Preservation of Environment and Quality of Life' (hereinafter referred to as 'SPEQL'). She is also a life member of Indian National Trust for Art and Cultural Heritage (hereinafter referred to as INTACH). She is also member of the Society to save Rocks, Hyderabad. The second petitioner is a retired officer of Indian Administrative Service. He retired prematurely while he was working as Vice- Chairman of Hyderabad Urban Development Authority. He is also a member of SPEQL and INTACH. He is President of Shanti Foundation which is dedicated to the propagation of Gandhian philosophy. He is also author of 'Indian Metropolis: Urbanisation, Planning and Management' published in 1987. He also wrote a book titled 'The Last Nizam' in 1992. He has also authored 'Hyderabad under Salar-Jung' and 'Latin American Integration'. He is also engaged in editing a book titled 'Gandhi in 21st century'. He is also President for Centre for Deccan Studies. He had submitted a report to the UN Centre for Human Settlements in Nairobi on the status of environment of Hyderabad in 1996. The third petitioner is also member of SPEQL and INTACH. He joined Indian Administrative Service in 1959. He also took early retirement. He was Joint Secretary in the Government of India at the time of his retirement. He is Chairman of the A.P. State Committee of World Wide Fund for Nature. He is President of Anjana Foundation which is a registered Trust dedicated in identifying and encouraging the needy students for granting scholarships. The fourth petitioner is also a retired officer of Indian Administrative Service. He was Secretary, Environment and Forest, Government of India at the time of his retirement. He is a member of a Government of Andhra Pradesh Organization named 'the Environment Protecting Training & Research Institute, Hyderabad (EPTRI). He is also a consultant to the Bangkok based UN Environment Programme. He is Director of the International Centre for Integrated Mountain Development located in Khatmandu. The petitioner No. 5 is a faculty member in 'Centre for Economic and Social Studies' (CESS). He claims to have written articles on Urbanization and Environment and also Displacement of persons under the Dams. He claims that his articles had been published by various prestigious journals. Thus, the petitioners claim that they have been making efforts to create a healthy atmosphere for better and cleaner environment. Some of the petitioners had submitted a Memorandum to the Chief Minister of Andhra Pradesh in 1997 with regard to the floor area ratio. They contended that power of Government to relax floor area ratio and to condone violations was not in the interests of environment. They also claim to have submitted a memorandum to Chief Minister on 5-8-98. They submitted that, at present the city of Hyderabad is reeling under various problems like 'Heat island' effect, non-availability of water and power, absence of lungs spaces and places for children to play, traffic congestion, growth of slums, accumulation of urban wastes, overflowing sewerages, air pollution, water pollution, non-availability of parking places and depletion of ground water table. They submitted that, in spite of all these difficulties and in spite of their memorandums having been given to the Chief Minister, the impugned order was issued by which unauthorised constructions were sought to be regularized on payment of fee. It is further submitted that violations of laws were sought to be condoned and illegal constructions regularized without even studying its effects on the overall quality of life in Hyderabad. They also submitted the following data in the Writ Petition; (a) The floor area ratio (FAR) in Hyderabad between 1.00 to 2.00 even before the G.Os 419 of 30th July, 1998 and 422 and 423 of 31st July, 1998 was far higher than the recommended norm of 0.45 to 1.50 by. the National Commission on Urbanisation, Even before July, 1998 the ratio was higher than in the cities of Delhi (0.83 to 1.33), Mumbai (0.50 to 1.33), Chennai (1.25 to 1.75) and Bangalore (0.75 to 1.75). (b) As against an international norm of public open spaces of 4 acres for 1000 people, the twin-cities are estimated to have only 0.5 acres of actual public open space and greenery per 1000 people. (c) A remote sensing study of NRSA revealed that the built-up areas of the city had increased from 245 Sq.Km in 1973 to 587 Sq.Km in 1996. During this period 128 Sq.Km of agricultural land was converted into industrial, residential, commercial and institutional areas. The number of tanks came down to 834 in 1996 compared to 932 in 1973. (d) The ground water in the cities has gone down by several metres. (e) A study has shown that the mean maximum temperature in the city has gone up by four degrees from 25 to 29 from the 1960's to 1990's. The 'heat island' effect, which is primarily caused by the closely built concrete structures which have no evaporative cooling effect and the curbing of the flow of wind which would otherwise carry away the trapped heat, the asphalted roads and heavy increase in vehicles adding to the air pollution, combine to increase the heat. In May, 1998 the temperature crossed 44 degrees Celsius. (f) The number of vehicles has grown by 738 per cent between 1981 and 1996 and this does not take into account the number of floating vehicles. This not only results in increased air pollution but also causes heavy traffic and parking problems. The problem is accentuated by the number of vehicles clustered around congested building areas having too many flats and vehicle owners, overflowing into the narrow roads and impeding the movement of other traffic.

(2.) A detailed counter affidavit has been filed, but curiously it does not disclose the. power of the Government in exercise of which the impugned G.O. has been issued. It extensively refers to interim orders passed in an earlier Writ Petition being W.P. No. 22613/98. The petitioner in that case sought implementation of the impugned G.O. with regard to the property constructed by him unauthorisedly. The Court while entertaining the Writ Petition expressed its doubts about the validity of the G.O, and stayed operation of the G.O. The respondents in their counter have referred to the following portion of the order passed in W.P.No. 22613/98 on 10th August, 1998; "Now, it is well settled that the Court cannot grant directions which are contrary to law. Prima facie, this Court is of the view that the Government has no power which renders a statute invalid by ordering wholesale regularization of illegal constructions. Therefore, before any direction is issued that the constructions which have been made by the petitioner admittedly without seeking any permission be regularized, this Court is duty bound to see whether the Government order No. 419, M.A, dated 30th July, 1998 is intra vires to the Municipal Act and allied laws. For this reasons, I stay the operation of the G.O.Ms.No. 419, MA. dated 30th July, 1998 and the concerned authorities are directed not to regularize any constructions made in violation of the Municipal Act till further orders from this Court. However, if the respondents have any objection for continuance of this order they shall be at liberty to approach this Court." Thereafter the respondents have referred to another order by which the stay granted on 10-8-98 was vacated. The operative portion of the order vacating the stay has also been quoted in the counter affidavit. The question which was raised by the learned Single Judge on 10-8-98 and the question which has been raised at the Bar by the Writ Petitioners is, "Whether the Government has any power to issue the G.O. or not". I am afraid that the answer has not come from the State. In this context, let us examine the G.O.Ms.No. 419, dated 30-7-98. This G.O. gives reference to seven orders passed prior to G.O.Ms.No. 419 and it has been admitted at the Bar that from 1992 to 1998 seven orders have been passed with the sole purpose of regularizing the unauthorized constructions. It shows a pattern that, after every year or two the authorities concerned turn a blind eye towards the constructions mat are going on in the city of Hyderabad and Secunderabad, do not implement the laws", allow the people to make constructions unauthorisedly and after a year or two they pass orders laying down scheme for regularization. In 1992 G.O.Ms.No. 87 was issued by which a scheme was laid down under which unauthorized constructions made prior to 31-12-91 could be regularized. So, by this order the constructions made unauthorisedly before 31st December, 1991 got regularized. Thereafter, another order came to be passed on 14-8-92 only after six months of issuing G.O.Ms.No. 87. By this order the concession given in G.O.Ms. No. 87 was extended to Vijayawada, Guntur, Tenali Urban Development Authority region and this order made it clear that this would be a 'one time measure'. Then the orders have been extended from time to time by G.O.Rt. No. 192, dt. 5-11-92, G.O.Rt.No. 235, dated 16-2-93, G.O.Rt.No. 240, dt. 18-2-93, G.O.Rt.No. 1240 dt. 1-9-93, G.O.Rt.No. 424, dt. 6-4-94, G.O.Rt.No. 425, dt. 6-4-94, G.O.Rt.No. 710, dt. 17-6-95 and G.O.Rt. No. 711, dt. 17-6-95. Then the G.O.Ms. No. 243, dated 22-5-96 was issued. In this G.O. the unauthorized constructions made upto 30th August, 1996 were sought to be regularized. Thereafter, another order came to be passed on 17-12-97 by G.O.Ms.No. 356. By this order the constructions made upto 30th September, 1997 were sought to be regularized. Time for making such applications was given upto 30th April,1998 which was extended upto 31st July,1998 by G.O.Ms.No. 289, dt. 25-5-98. In this G.O.Ms.No. 289 only time was extended for entertaining the applications for regularization of unauthorized constructions which were made prior to 30th September, 1997. Thereafter, G.O.Ms.No. 373 dated 1-7-98 was issued by which the constructions made unauthorisedly prior to 30th June, 1998 were sought to be regularized. Then, the impugned G.O. was issued on 30th July, 1998 when the time fixed for making applications under the earlier G.O was coming to an end. By this Order now the time was again extended beyond the dates at which the unauthorized constructions were to be regularized.

(3.) So, in the light of these facts it cannot be accepted that the Government kept in view the hardships of the people who have constructed their houses unauthorisedly and made a one time exception under its executive policy as is suggested in the counter affidavit. For more than a decade this has been the regular policy of the Government and the respondents to allow people to go for unauthorized constructions and then regularize such unauthorized constructions. Not only the environment and ecology of the city is at peril but the interests of honest law abiders are also jeopardized by such a policy. The learned Additional Advocate General has drawn our attention to the judgment of Supreme Court reported in All India Federation for Tax Practitioners v. Union of India. We have gone through the judgment and we have no quarrel with the judgment. The Courts do not interfere with the policy matters and the Courts can also not substitute the wisdom of the Government by its own wisdom. But, in the case before the Supreme Court it was a legislation made by the Parliament which was under challenge. The Legislature has the power to elect a law and 'Voluntary Disclosure of Income Scheme, 1997' was result of Sections 64 to 78 of the Finance Act, 1997. In the present case we have not been shown any power with the Government which would enable it to issue the impugned G.O. It is true that on our asking the concerned Principal Secretary to Government filed an affidavit that such a scheme would not be repeated but we have our own doubt whether this affidavit would not be given a go-by because even the earlier orders issued by the Government show that this arrangement was a one time exception. In any case, if we find that the Government has no power to issue the G.O., then we cannot sustain it. It is not only the Government which is bound by the laws, so are we. The Additional Advocate General has not been able to show us any power under any law viz., Hyderabad Municipal Corporations Act, A.P. Urban Areas (Development) Act, A.P. Town Planning Act whereby the Government has the power to regularize the illegal constructions. The learned Additional Advocate General has also relied on the order passed in W.P.No. 22613/98 on 4-9-98 vacating the stay granted earlier. We have gone through the order in depth. The order refers to A.P. Urban Areas (Development) Act, 1975, A.P. Town Planning Act, 1920, Hyderabad Municipal Corporations Act. The learned Judge only referred to Chapter-XII of the Hyderabad Municipal Corporations Act and was of the view that it provides for regularization of construction/ erection of buildings etc. He referred to Section 452,461,462,463,586 and 589. The learned Additional Advocate General also referred to these sections and relied on these sections to show us the power with the Government. He also relied on Sections 596, 675, 676, 677, 678 and 679. He also referred to Section 34 of the A.P. Urban Areas (Development) Act. Chapter-XII of the Hyderabad Municipal Corporations Act starts with Section 428. Under Section 428 a notice has to be given to the Commissioner of intention to erect a building. Under Sections 429 to 432 the Commissioner may require some information or additional information. Sections 451 to 455 deal with inspection and proceedings to be taken if the construction is contrary to the Act or bye-laws and Sections 461 to 463 deal with works unlawfully carried on. There is nothing in these provisions which gives a power to any authority including the Government to allow any person to make an unauthorized constructions and if such construction is made to regularize it. Section 461 to 463 are important as the mode is prescribed in case of an unauthorized construction having been made. Section 461 lays down;