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IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD
V.ESWARAIAH and VILAS V. AFZULPURKAR, JJ.
K.H.V. Prasad and others – Appellants
v.
Govt. of Andhra Pradesh, rep. by its Principal Secretary, Municipal Administration and Urban Development and others – Respondents
Writ Petition No.1069 of 2008 and Batch
Decided on : 8-6-2009.
(2000) 7 SCC 425 : 2000 (5) AL T 5.1 (DN SC) - Followed
(b) A.P. Regulation and Penalization of Unauthorizedly Constructed Buildings and Buildings Constructed in Deviation of the Sanctioned Plan Rules, 2007 - Rule 9 - High level committee constituted in pursuance of direction of the High Court - Committee recommending scheme for regularization of unauthorized constructions - Amendments made accordingly - Neither restrictive of any fundamental right nor affecting any easementary rights or the pending civil litigations - Amendment held not arbitrary.
(c) A.P. Regulation and Penalization of Unauthorizedly Constructed Buildings and Buildings Constructed in Deviation of the Sanctioned Plan Rules, 2007, (G.O.Ms. No.901, M.A. and U.D. (M1) Dept., dated 31-12-2007) - Rule 4 (1) - Scheme requiring clearance from Fire Service and Airport Authority - Safeguard inbuilt to ensure structural safety by reading down Rule 4(1)(c) and severing and striking down words of height above 15 mts. - Commissioners power not unfettered -Allegation of unguided discretion to the Commissioner not tenable - Amended rule not arbitrary or ultra vires.
(d) A.P. Regulation and Penalization of Unauthorizedly Constructed Buildings and Buildings Constructed in Deviation of the Sanctioned Plan Rules, 2007 (G.O.Ms. No.901, M.A. & UD (M1) Dept., dated 31-12-2007) - Rule 9 (h) - Construction prohibited only in spaces earmarked for recreation use - Disregard of mandatory open spaces in the lay-outs or the master plan not permissible - The words for recreation use in Rule 9 (h) held arbitrary and accordingly struck down.
(e) A.P. Regulation and Penalization of Unauthorizedly Constructed Buildings and Buildings Constructed in Deviation of the Sanctioned Plan Rules, 2007 (G.O.Ms. No.901, M.A. & UD (M1) Dept., dated 31-12-2007) - Rule 9 (i) - Deleted by G.O.Ms. No.112, M.A. & U.D. (M1) Dept., dated 31-1-2008 - Deleted - Deletion amounts to modification of master plan and zonal development plan - Held arbitrary and unsustainable.
(f) A.P. Regulation and Penalization of Unauthorizedly Constructed Buildings and Buildings Constructed in Deviation of the Sanctioned Plan Rules, 2007 (G.O.Ms. No.901, M.A. & UD (M1) Dept., dated 31-12-2007) - Rule 9 (j), (k) and (I) - Scope of - Scheme not providing for regularization of constructions on litigated sites - Regularization also not permitted in areas earmarked for parking as per sanctioned plan - Clearance of layout made pre-condition for Regularisation - Such provisions cannot be held as arbitrary.
(g) A.P. Regulation and Penalization of Unauthorizedly Constructed Buildings and Buildings Constructed in Deviation of the Sanctioned Plan Rules, 2007 (G.O.Ms. No.901, M.A. & UD (M1) Dept., dated 31-12-2007) - Rule 9 (m) (as originally stood) and Rule 5 (7) (Inserted by G.O.Ms. No.112, M.A. & UD (M1) Dept., dated 31-1-2008) - Deletion of Rule 9(m) couples with insertion of Rule 5 (7) provides sufficient safeguards to maintain the mandatory width of the major roads.
(h) Hyderabad Municipal Corporations Act, 1955 - Section 455-AA (as inserted by A.P. Act 9 of 2008) and Section 55, Transfer of Property Act, 1882 - Purchaser of unauthorized construction liable to be penalized - He should have verified the sanctioned plan - The scheme applies to one who applies for regularization irrespective of whether he is the builder, owner or purchaser.
(h) Hyderabad Municipal Corporations Act, 1955 - Section 456-AA (as inserted by A.P. Act 9 of 2008) - Imposition of heavy penalties for regularizing unauthorized constructions - Not invalid.
(i) Hyderabad Municipal Corporations Act, 1955 - Section 461 (4) (inserted by A.P. Act 6 of 2008) - Penalty of Imprisonment or fine up to 10% of value of land - Held to be not sufficiently deterrent - Statae advised to provide more deterrent punishments.
(j) Hyderabad Municipal Corporations Act, 1955 - Sections 452-A, 455-A and 455-AA; Section 218-A, A.P. Municipalities Act, 1965; and Sections 41, 43, 46 and 46-A, A.P. Urban Areas (Development) Act, 1925 as amended by A.P. Act 9 of 2008 and A.P. Regulation and Penalization of Unauthorizedly Constructed Buildings and Buildings Constructed in Deviation of the Sanctioned Plan Rules, 2007(Rules issued in G.O.Ms. No.901, M.A. & UD (M1) Dept., dated 3-12-2007) and G.O.Ms. No.112 dated 31-1-2008 - Amendments held to be neither unconstitutional nor invalid.
(j) Municipal Laws - Scheme of Regularization and Penalization of Unauthorized Constructions - Routine regular monitoring by the High Level Expert Committee reporting to the Government suggested.
(k) Constitution of India - Article 226 - Validity - Presumption of constitutionality is available with all legislation - Invalidation cannot be held lightly - Principles of interpretation of statutes restated.
(2008) 5 SCC 287 - Relied upon
(Vilas V. Atzulpurkar, J.)
In this batch of cases the question posed for consideration is regarding the validity of AP Act 9 of 2008, which amended the Hyderabad Municipal Corporations Act, 1955 (for short 'HMC Act'). Andhra Pradesh Municipalities Act, 1965, Vijayawada Municipal Corporation Act, Visakhapatnam Municipal Corporation Act, Andhra Pradesh Municipal Corporations Act, 1955 and the Andhra Pradesh Urban Areas (Development) Act, 1975 and G.O.Ms.No.901 dated 31.12.2007 issued thereunder.
2. By the aforesaid amendment Act the HMC Act was amended by inserting Sections 452-A, 455-A and 455•AA apart from substituting Schedule U and V of the HMC Act. Similarly, with respect to the other allied Acts, in the Andhra Pradesh Municipalities Act, 1965, Section 218-A was inserted and in the Andhra Pradesh Urban Areas (Development) Act, 1975 under Section 2h(h) high rise buildings was defined and Sections 41 and 43 were amended by inserting sub-sections. Further, Section 46 was substituted by conferring power of regularization on the Vice-Chairman and Section 46•A was inserted in the said Act. The said Act came into force on 15.12.2007 having received assent of the Governor on 16.04.2008 and published in Andhra Pradesh Gazette Part IV - B (Extraordinary) dated 19.04.2008. In pursuance of the powers conferred under Section 455-AA of the HMC Act as well as Section 218-A of the Andhra Pradesh Municipalities Act and Section 46 of the Andhra Pradesh Urban (Development) Act, the Government issued G.O.Ms.No.901 Municipal Administration and Urban Development (M 1) Department dated 31.12.2007 titled "The Andhra Pradesh Regulation and Penalization of Unauthorizedly Constructed Buildings and Buildings Constructed in Deviation of the Sanctioned Plan Rules, 2007". The aforesaid GO is applicable to the existing buildings in the jurisdiction of the Municipal Corporations, the Urban Development Authorities and the Municipalities in the State of Andhra Pradesh constructed after 01.01.1985 and before 15.12.2007. The said GO was published in Andhra Pradesh Gazette Part I (Extraordinary) dated 31.12.2007 and came into force from the date of said publication.
3. In this batch of cases the aforesaid provisions of AP Act 9 of 2008 as well as G.O.Ms.No.901 are questioned by the petitioners primarily on the ground that they are ultravires the power of the Government in amending the HMC Act and the allied Corporation Acts as well as the AP Municipalities Act and the AP Urban Areas (Development) Act. In some of the writ petitions only Section 455-AA is questioned and in some writ petitions only the Rules under G.O.Ms.No.901 are questioned, while in some other writ petitions the Ordinance No.15 of 2007, preceding AP Act 9 of 2008 is questioned whereas in some of the writ petitions only the method of penalization in the aforesaid GO is questioned.
4. We have heard all the writ petitions together and in this judgment, though we have separately dealt with each writ petition, the area of challenge broadly as appearing in the batch of cases is indicated as above.
5. Before we deal with the issue involved it may be necessary to set out the previous history and the events leading up to the enactment of impugned GO. For the sake of convenience those events are categorized under the following head and broadly referred to as preamble.
PREAMBLE:
6. The HMC Act was enacted and enforced in the year 1955 whereas AP Municipalities Act was enacted in 1965 and the AP Urban Areas (Development) Act was enacted in the year 1975. The aforesaid Acts seek to regulate, inter alia, the constructions of buildings under the Building Rules, which are framed by keeping in view the requisite Floor Area Ratio (FAR), the open space norms on all sides of the building etc. Spurt in population explosion in the Hyderabad and other cities in Andhra Pradesh over the decades, has also resulted in massive increase in demand for built-up area in the cities including conversion of agricultural lan
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