GYAN CHAND GUPTA Vs. NIZAMABAD MUNICIPALITY

JUDGEMENT

(1.) In this writ petition, the petitioners challenge the validity of the Master Plan of Nizamabad Town, notified under the A.P.Town Planning Act and the action of the respondents in putting red mark to the building of the petitioners in Mpl.Nos.9-10-997, 998, 999 and 100/1 of Nizambad, for the purpose of road widening as illegal, arbitrary and unconstitutional.

(2.) The averments in the affidavit filed in support of the writ petition are as under:-- The father of the petitioners purchased two separate bits of lands in the premises referred to above in the year 1967. There existed a strip of land belonging to the Municipality separating the two bits. He petitioner purchased the strip of 35 sq.yards of land from the Municipality, the 1st respondent, through sale deed dated 30-5-1987. The petitioners were granted permission on 10-12-1991 to construct on the said premises and they made construction in accordance with the sanctioned plan, after leaving the portion shown as affected by the Master Plan. A Master Plan for Nizamabad town was brought into existence through G.O.Ms.No.46 MA dated 15-2-1974, indicating various details as provided for under Section 4 of the A.P.(Telangana Area) Municipalities Act, 1956. The 1st respondent can undertake widening of the road under Section 244 of the Act only after acquisition of the land under Section 251 of that Act. Though the said Act has been repealed by the A.P. Municipalities Act 1965, the provisions of the 1956 Act, particularly, those of Sections 24 to 251 have been saved. They allege that the respondents did not follow the procedure and failed to determine regular line of the street regarding set back of the buildings. According to them, in the absence of such delineation of street line, it was not open to the respondents to undertake any road widening. They complain that though they made constructions strictly in accordance with the sanctioned plan, a mark was put on the building indicating that the marked portion is required to be demolished for the purpose of widening of the road. While admitting the writ petition, this court granted an interim direction on 26-8-1998, not to cause any loss to the building of the petitioners, pending the disposal of the writ petition. Separate counter affidavits were filed by the Commissioner, Municipality and District Collector, the 2nd respondent. In one of the counter affidavits, they have stated that the petitioners encroached into the road margin and made construction in deviation of the sanctioned plan. The proceedings in the writ petition discloses that petitioners were able to persuade this court that the use of expression "encroachment" was not proper, since the construction was made after obtaining the permission from the Municipality. At one stage while making the interim orders absolute on 18-1-1999, an observation was made that the 1st respondent shall explain as to why he shall not be prosecuted for swearing the false affidavit. The petitioners also filed Contempt Case No.749/2000 in this regard. These developments resulted in filing a series of additional affidavits by the respondents narrating the facts. The incumbents that assumed office from time to time had also sworn to additional affidavits. The common plea running through all the counter affidavits is to the following effect. The father of the petitioners held two plots abutting the RP Road. According to the Master Plan, the road was to be widened to 80 feet. There existed a strip of land belonging to the Municipality in between the two plots. He purchased the strip of land. The petitioners were granted permission on 10-12-1991 to construct ground plus 1st floor. The petitioners offered to leave a set back of 10 feet towards the road for the purpose of road widening as provided for in the Master Plan and had executed an undertaking to that effect. Having obtained such a plan, the petitioners had constructed in total deviation of the plan. They have made construction on the area earmarked for road widening, on the open space on both sides and made construction of 2nd floor, without there being any permission. What was undertaken by them was only to remove the encroachments on the set backs that were left by the petitioners and they did not touch any construction made by the petitioners in accordance with the sanctioned plan. As regards the challenge to the Master Plan, they submit that it was published way back in the year 1974 after inviting objections from the concerned persons. The Plan provided for all the details including the set backs to be provided for on the roadside while sanctioning construction permission. The respondents contend that the petitioners were not only aware of the Master Plan but had acquiesced in it while seeking permission. In that view of the matter, it is not open to the petitioners to challenge the Master Plan after several decades.

(3.) Sri Bankatlal Mandhani, learned counsel for the petitioners, sought to challenge the Master Plan with reference to the provisions of the A.P. Town Planning Act as well as the A.P. Urban Areas Development Act 1975. Having argued at length on these aspects, at one stage, he gave up the challenge to the Master Plan and confined the arguments to the action of the respondents in marking the building for the purpose of widening of the road. According to him, the petitioners constructed the building strictly in accordance with the sanctioned plan, which conformed to the Master Plan. Learned counsel asserts that once the building exists in accordance with the Master Plan and the sanctioned plan, there is no justification on the part of the respondents in proposing to demolish it. He submits that if the respondents intend to widen the road, they have to acquire the requisite land together with structures thereon and it is impermissible to undertake demolition without having recourse to law. Learned Government Pleader for Municipal Administration Sri Y.Rama Rao, submits that the challenge of the petitioners to the Master Plan cannot be sustained for more reasons than one. According o him, the Master Plan was published way back in the year 1974 and the belated challenge to the same in the year 1998 is impermissible in law. His 2nd submission in this regard is that the petitioners were aware of the Master Plan when they submitted application seeking permission for construction in the year 1991 and made a specific reference to it. Once they derived the benefit under the Master Plan as regards land use, they cannot turn round and challenge the same. It is also his case that the building line was stipulated by the Master Plan itself and various other proceedings and it was in this context that the petitioners had shown in their plan, a set back of 10 feet for the purpose of widening of the road. He contends that having secured the sanction, the petitioners had made construction on the land earmarked for set back. He submits that by resorting to one proceeding or the other, the petitioners had taken the respondents for a ride and were successful in constructing over the entire area and laying an independent floor without permission.