Arul Colony Christian Welfare v. Greater Hyderabad Municipal Corporation,

THE HONOURABLE SRI JUSTICE M.S.RAMACHANDRA RAO W.P.No.13053 of 2014 ORDER :

In this Writ Petition the petitioner questions Proceedings No.831/CH/UB/GHMC/2013 dt.15.02.2014 of the Zonal Commissioner of 1st respondent (issued with the approval of the Commissioner of the 1st respondent) and for other reliefs.

The brief facts leading to the filing of the Writ Petition are as under :

2. Hyderabad Archdiocese Social Service Society (for short, 'HASSS') is a Society registered under the Andhra Pradesh Public Societies Registration Act I of 1350 Fasli with Registration No.195 of 1973 and having registered office at Secunderabad.

3. HASSS had purchased an extent of Ac.15.00 in Sy.No.495, 498 and 499 (Part) at Kapra Village. The erstwhile Hyderabad Urban Development Authority (for short, 'HUDA') sanctioned a layout in that land vide Permit No.810/79 Letter No.810/70/ZOM/1979 dt31.10.1979. A final layout was sanctioned by the said authority vide letter No.D.Dis.No.810/MPU/HUDA/79 dt.23.04.1983, subject to certain conditions. Condition no.13 provided that no open space in the said layout earmarked for parks, playground, community facilities, schools, etc. shall be utilized for any

other use without the prior approval of the said authority. The said land was divided into 136 residential plots by leaving three open spaces as lung spaces as per the layout rules of the HUDA. The plots were sold to several persons by the HASSS. Houses were constructed therein and the colony came to be known as Arul Colony. The layout of the said colony was revised by the HUDA vide letter No.13098/MP2/HUDA/84 dt.22.02.1985.

4. HASSS applied to the then Kapra Municipality vide letter dt.03.01.1989 for permission to construct a Community Hall in an area of 179.46 sq.mts. in one of the open spaces provided in the layout. It undertook to maintain and pay taxes for the proposed Community Hall. This application was forwarded on 23.01.1989 by the Commissioner of the Kapra Municipality to the HUDA for technical approval. By proceedings dt.01.02.1989 in letter No.956/P4/HUDA/89, the HUDA directed HASSS to submit 'No Objection Certificate'

from the Kapra Municipality for utilizing the site (open space) for construction of the Community Hall. By proceedings Ref.No.KM/10/88-89, the Chairman of the Kapra Municipality informed the HUDA that it had No Objection for construction of the Community Hall in the above land since it is useful for the surrounding colonies in uplifting their social status.

The Municipal Council of Kapra Municipality also passed resolution No.284 dt.14.03.1989 stating that it had no objection for construction of the

Community Hall by HASSS and that it should be made available to all. The said resolution also contained a condition that it should not be alienated or misused and in such an event the land with the building would be taken over by the Municipality. The said resolution was signed by the Commissioner of the Kapra Municipality. Copy of the same was forwarded vide Proceedings No. A.4/43/89 DT.17.03.1989 by the Chairman of the Municipal Council o f Kapra Municipality to the Secretary to Government, Housing, Municipal Administration and Urban Development Department, Government of Andhra Pradesh. The said communication also mentioned that the Council in the said resolution had resolved to transfer the land in question for the construction of Community Hall by HASSS subject to the following terms and conditions: "1.

The Community Hall shall be open to all irrespective of caste creed and preference in allotment to the residents of Kapra Municipality.

2. The Council reserves the right to take back the site together with the building if at a later stage the building is not used for the purpose for which it is constructed."

3. The building should be constructed in all aspect within a period of 3 years' or else the Municipal Council reserves the right to take back possession of the site."

5. Thereafter, vide letter No.956/P4/HUDA/89 dt.06.06.1989, the Vice-Chairman of HUDA wrote to the Commissioner of Kapra Municipality stating that HUDA had No Objection for utilizing the site for only community purpose like Community Hall, school, library, etc. subject to condition that in no case the open space in the layout

should be reduced to less than 5%; such community purposes shall not be utilized for religious purpose or worship and will be open to all communities; the Municipality may take a decision to give such places on lease only; and subject to the above conditions, the HUDA is granting technical approval for the building plans.

6. Thereafter, in the above land construction of the Community Hall with two rooms and shed, senior citizen room, welfare association hall, gardener's room, etc. was made by HASSS.

7 The petitioner Association is also registered under the under the Andhra Pradesh Public Societies Registration Act I of 1350 Fasli with Regn.No.4722/1994. The petitioner claims that it is a Welfare and Cultural Association formed by the 136 owners of dwelling units/houses in the Arul Colony and it is maintaining the colony and that HASSS is its mother association. It has filed a letter dt.25.11.2013 addressed to its Secretary by the Vice-Chairman of HASSS wherein it is stated that the Housing Project in the above land was developed by a group of members of HASSS constituted as HASSS Housing Project Scheme Committee; that application was made at the instance of the said committee by HASSS for construction of the Community Hall for its members in the open space 'E1' earmarked in the sanctioned layout in

1989; that it was constructed by funds made available by HASSS through its organization Jyothirmai and contribution by its members and philanthropists; that Community Hall was inaugurated by the Archbishop and the HASSS Housing Project Scheme committee was its custodian; on 28.09.1994, the Members of the HASSS Housing Scheme in a General Body meeting unanimously changed the nomenclature of HASSS Housing Scheme to Arul Colony Christian Welfare and Cultural Association (the petitioner herein); that the petitioner association is part and parcel of HASSS and that HASSS Housing Scheme had submerged with the petitioner association and the nomenclature has been changed; and that the petitioner has right over all the assets in the Arul colony constructed and erected by the petitioner.

8 .

In the year 2007, the Kapra Municipality was merged with the Greater Hyderabad Municipal Corporation (the 1st respondent).

9. Vide proceedings No.826/TPS/KC-I/EZ/GHMC/2011 dt.18.07.2011, the 2nd respondent issued a notice to the petitioner purportedly under Section 402 of the Greater Hyderabad Municipal Corporation Act, 1955 (for short, 'the GHMC Act') to the following effect :

"The Hon'ble High Court of A.P. ordered on 27.09.06 that MCH should initiate steps for vacating unauthorized occupation/encroachment of the lands, which were earmarked for public parks or for public recreation. It is also further ordered that reasonable

opportunity may be given to the encroachers to defend themselves against the proposed removal of unauthorized encroachments/occupations of municipal lands/public lands.

During the course of inspection it is noticed that you have encroached upon the open space earmarked for park/public purpose in the layout of Arul Colony, Kapra (V) and constructed structure (s) consisting of two rooms and one shed.

Therefore, you are hereby directed to Handed over the above said encroachment within three (3) days failing which GHMC will take necessary action departmentally as per rules."

10. Another notice also bearing the same date appears to have been given to the petitioner stating that the petitioner had encroached upon the open space for public purposes abutting HT (High Tension) road, Kapra Village and constructed structures comprising of AC Sheet roof sheds.

11. A detailed explanation was submitted by petitioner on 21.07.2011 pointing out that it had made no encroachments in the open spaces as alleged in the above notices.

1 2 .

Vide proceedings No.826 and 826/1/TPS/KCI/EZ/GHMC/2011 dt.25.07.2011, the 2nd respondent rejected the petitioner's explanation dt.21.07.2011 without assigning any reason and directed the petitioner to handover the open places with structures immediately to the 1st respondent and threatened to take action as per Rules. On 3.8.2011, the Community Hall building was

seized by the officials of 1st respondent.

13.

The petitioner questioned the same in WP.No.21886 of 2011 in this Court.

14. A learned single Judge of this Court entertained the Writ Petition and granted an interim order on 05.09.2011 in WPMP.Nos.26659 and 28026 of 2011 in WP.No.21886 of 2011 directing removal of the seal by 1st respondent and enable the petitioner to utilize the same for the purpose for which it was constructed. In the said order he opinioned that the notices issued by the 1st respondent were illegal as Section 402 of the Act was inapplicable; that permission was granted on 06.06.1989 by HUDA and the then Kapra Municipality for construction of the Community Hall; that the impugned order was not supported by any reasons; that the Community Hall had been sealed on 03.08.2011; there was no power to seal it under Section 402 of the Act; and the facts of the case did not warrant invocation of Section 461-A of the Act. 15.

This was questioned by the 1st respondent in WA.No.742 of 2011. In WAMP.No.1767 of 2011, the 1st respondent also sought suspension of the operation of the interim order dt.05.09.2011 passed by the learned single Judge in WPMP.Nos.26659 and 28026 of 2011 in WP.No.21886 of 2011.

16.

In that Writ Appeal, 3rd respondent filed WAMP.No.3085 of 2013 to implead itself. The 3rd respondent is another registered Association also claiming to be looking after the welfare of the residents of the Arul Colony and is a rival Association to the petitioner. 17.

After hearing all the parties, the Division Bench passed orders on 27.11.2013 disposing of the Writ Petition in the following terms:

"We are of the view that in a matter of this nature, t h e Writ Court should not have entertained the grievance of the petitioner at this stage. It is not the case that the Municipal Corporation has no jurisdiction to issue such notice. If there is improper invocation of the provision of law, that can be pointed out by the writ petitioner before the authorities concerned.

We, therefore, set aside the impugned judgment and order. We direct the Municipal Corporation to give notice to all the concerned and conduct hearing. The writ petitioner would be free to produce all the material documents before the appropriate official of the Corporation who will consider all the contentions and decide the matter without being influenced by the decision of the learned Trial Judge.

The order of sealing is restored.

However, after considering all aspects of the matter, if the Corporation found that there has been no illegality in making construction, appropriate order would be passed with reasons.

In that case, the order of desealing shall also be passed immediately thereafter. In the event there be any illegality, appropriate legal measures shall be taken. The entire exercise shall be completed within a period of six weeks from the date of communication of this order. We make it clear that we have not decided anything on merit of the case nor the findings of the learned Single Judge will come in the way of rendering the decision by the appropriate authority.

In view of this order, nothing remains to be decided in the writ petition. Hence, the parties would be at liberty to approach the learned Trial Judge to get suitable order in accordance with law.

The Writ appeal is accordingly disposed of and the above miscellaneous applications are ordered. No order as to costs."

18. Thereafter, it appears that both petitioner as well as 3rd respondent filed written submissions before the Commissioner of the 1st respondent.

The Zonal Commissioner of the 1st respondent, with the approval of the Commissioner of the 1st respondent, then passed the impugned order.

19.

In the impugned order Proc.No.831/CH/UB/GHMC/2013 dt.15.2.2014, the 1st respondent took a view that the Community Hall in question was not being used for the purpose for which it was constructed; there was rivalry between the petitioner and the 3rd respondent provoking religious sentiments; therefore, the Community Hall and Senior Citizen Room were taken back by it on 02.08.2011 and it is being maintained and allotted to the general public by 1st respondent itself. The 1st respondent thus rejected the claims of petitioner as well as 3rd respondent and directed that the Community Hall, Senior Citizen's Room, Welfare Association Hall (gardener's room) and park along with all appurtenant land (hereafter referred to the 'Community

Hall etc') shall continue to vest with it and be maintained by it under its control.

20.

On 17-04-2014, W.P.No.21886 of 2011 was dismissed in view of the order of the Division Bench in W.A.No.742 of 2011 giving liberty to the petitioner to question the order dt.15-02-2014 passed by the 1st respondent.

21.

The petitioner then filed this Writ Petition questioning the order dt.15-02-2014 passed by the 1st respondent.

22. Heard Sri V. Venkata Ramana, learned Senior Counsel for Sri V. Ramchander Goud, learned counsel for petitioner, Smt. A. Deepthi, learned Standing Counsel for respondent Nos.1 and 2 and Smt. Neeraja Sudhakar Reddy, learned counsel for 3rd respondent.

23.

Even though time was granted on 25-04-2014, 02-12-2014, 05-12-2014, 09-12-2014 and 26-12-2014 to the 1st respondent to file counter, no counter affidavit was filed. The learned Standing Counsel for GHMC, however, sought to defend the impugned order on the basis of its contents and also raised several contentions, which are referred to below.

24. In the impugned order, the 1st respondent does not

state that the construction of the Community Hall etc, by HASSS amounted to an encroachment in open spaces in the sanctioned layout approved by the HUDA. It in fact records that in the sanctioned layout there were three open spaces and the Vice-Chairman of HUDA vide letter No.956/P4/HUDA/89 dt.06.06.1989 granted technical approval of the building plan for the Community Hall in the above property subject to the condition that the Commissioner, Kapra Municipality should satisfy that the open space should be minimum 5% over and above the land to be utilized for Community Hall. There is no finding given in the impugned order that there is any violation in this regard by HASSS or by petitioner. Therefore, the very basis of the allegation contained in the notice No.826/TPS/KC-I/EZ/GHMC/2011 dt.18.07.

2011 issued under Section 402 of the Act (on the basis of which the impugned order was passed) that petitioner had encroached upon the open space earmarked for park/public purpose in the layout of Arul colony and constructed structures consisting of two rooms and one shed, is non-existent. Therefore, the 1st respondent should have dropped all further action against the petitioner.

25. Sec.402 of the Act states:

"402. Prohibition of depositing etc., of thing in streets : - (1) No person shall, except with the written permission of the Commissioner -

(a) place or deposit upon any street, or upon any open channel, drain or well in any street or in any public place, any stall, chair, bench, box, [ladder, bale, building materials, building debris or other things] whatsoever so as to form an obstruction thereto or encroachment thereon;

(b) project, at a height of less than twelve feet from the surface of the street, any board or chair, beyond the line of the plinth of any building over any street;

(c) attach to, or suspend from any wall or portion of a building abutting on a street, at a lower height than aforesaid anything whatever.

(2) Whoever contravenes the provisions of sub-sec.

(1) shall on conviction, be punishable with imprisonment which may extend to one month or with fine which may extend to five thousand rupees or with both.

(3) Anything placed or deposited in contravention of the provisions of sub-section (1) may be seized by the Commissioner or any other person duly authorized by him in this behalf, and on conviction for an offence under sub-section (2) the court may also pass such order as it thinks fit respecting the disposal of such thing including confiscation of such thing.

A reading of the above provision indicates that it has no application to the facts of the case.

2 6 . Also when the show-cause notice dt.18.07.2011 issued under Section 402 of the Act contained no allegation against the petitioner that the Community Hall was not being used for the purpose for which it is constructed, in my opinion, it is not open to the 1st respondent to take view that it was not so used. Unless a show-cause notice had been issued to the petitioner making the said allegation along with the material on the basis of which such prima facie view was being taken by

1st respondent, and an opportunity was given to the petitioner to refute the said allegation and establish that it is not true, the 1st respondent could not have given the finding that the Community Hall was not being used for the purpose for which it was built. This finding is also not supported by any reasons or any material on record. Thus the impugned order is patently arbitrary and amounts to expropriation of property of the petitioner/HASSS and a gross misuse of power by 1st respondent.

27. Although the Counsel for 3rd respondent sought to contend that there was misuse of the Community hall by the petitioner Association, I am not inclined to go into the said issue in this Writ petition since it is matter which requires oral evidence and cannot be conveniently decided in this proceeding under Art.226 of the Constitution of India.

28. Even assuming that there is any rivalry between petitioner and 3rd respondent with regard to management of the Community Hall etc, on that ground, the 1st respondent cannot grab it highhandedly.

29. The Standing Counsel for GHMC could not justify how the 1st respondent, having issued a show-cause notice to petitioner that it had encroached into open space

and sealed the Community Hall etc, could have retained control of the same by the impugned order on a totally different ground (i.e that it was not being used for the purpose for which it was constructed) not mentioned in the show-cause notice issued to petitioner.

30. Admittedly, in the letter D.Dis.No.810/MCU/HUDA/79 dt.23-04-1983 addressed by the Vice Chairman, HUDA to HASSS sanctioning the final layout in favour of the latter, it is mentioned in clause-13 as under:

"13. No open space provided in the sanctioned layout plan L.P.No.810/MPU/HUDA/79 for parks, play ground, community facilities schools etc., shall be utilized for any other use without the prior approval of Hyderabad Urban Development Authority"

31. In terms of the above clause, HUDA had granted permission vide letter No.956/P4/HUDA/89 dt.06-06-1989 for construction of Community Hall after obtaining No Objection Certificate from the Kapra Municipality.

Obviously, both HUDA and the Kapra Municipality were satisfied that, excluding the open space where the Community Hall was to be constructed, the balance open space in the layout sanctioned by HUDA for HASSS was more than 5% of the gross area covered by the layout as open space (as required by Rule 10 of the Municipalities Layout Rules, 1970 framed by the G.O.Ms.No.62 Municipal Administration, dt.28-01-1970 in exercise of the power conferred on the Government to frame such Rules under Section 326(2)(s) r/w Section 185 of the A.P.

Municipalities Act, 1965). None had questioned the grant of such permission to HASSS for construction of Community Hall in the open space. Thus, by no stretch of imagination can it be contended that HASSS or the petitioner had unauthorisedly converted the open space and constructed Community Hall therein illegally.

32. The Standing Counsel sought to contend that the open spaces in the layout could not have been utilized for Community Hall and relied on G.O.Ms.No.114 Municipal Administration and Urban Development Department dt.14.03.2006. The said GO amended Andhra Pradesh Municipalities Layout Rules, 1970 by substituting Rule.14 of the said Rules. The substituted Rule directed that all roads and open spaces such as parks and playgrounds earmarked in accordance with the rules in the layout which is approved under Section 185(3) of the A.P. Municipalities Act, would automatically stand transferred free of cost and vest with the Municipal Council free from all encumbrances and that the Municipality would then maintain the same.

33. In my opinion, the said GO cannot apply to the present case because the said G.O cannot have any retrospective operation and can have only prospective operation.

34. The learned Standing Counsel for 1st respondent,

however, relied upon the decision in Government of India and others Vs. Indian Tobacco Association[1] a n d National Agricultural Cooperative Marketing Federation of India Ltd., and another Vs. Union of India and others[2] and contended that whenever a substitution is made of a provision, it would have retrospective operation.

35. In Indian Tobacco Association (1 supra), certain words in an exemption notification issued under the provisions of the Customs Act, 1962 exempting goods imported by holders of Duty Entitlement Passbook at certain sea-ports and certain Inland Container Depots were substituted by new words. The effect of the substitution was that for the list of places specified in the original notification, a larger list containing names of certain additional places was incorporated in the original notification. The Court held that exporters, who had been exporting from sea ports or inland Depots added in the subsequent notification, were entitled to the same benefit which had been granted to exporters registered at the sea p o r t s or inland Depots specified in the original notification. The Court held that exemption notifications entitling exporters to obtain benefits thereunder should be liberally construed; by reason of the amendment, no substantive right has been taken away nor any penal consequence had been imposed; by reason of the

amended notification, the Central Government only intended to rectify a mistake and thus it would have retrospective effect and retro-active operation. It further held that the words "substitution" in the subsequent notification had not been used in the sense of "amendment" and that where a statute is passed for the purpose of supplying an obvious omission in a former statute, the subsequent statute relates back to the time when the prior Act was passed. I am of the view that the said decision has no application to the present case for the reason that Rule 14, introduced vide G.O.Ms.No.114 Municipal Administration and Urban Development Department dt.

14-03-2006, provides for transfer free of cost of all roads and open spaces such as parks and play grounds in Municipal areas and vesting thereof with the Municipal Council free from all encumbrances. It is thus a provision taking away substantive rights of residents of the layout in such roads and open spaces. It is also not one providing for an obvious omission in the A.P. Municipalities (Layout) Rules, 1970 and is clearly in the nature of an amendment to the said Rules. Therefore, it can have only prospective operation and not retrospective operation.

36. In National Agricultural Cooperative Marketing Federation of India Ltd., (2 supra), Section 80-P (2)(a)(iii) of the Income Tax Act, 1961 as amended by the Income Tax

(2nd Amendment) Act, (Act XI of 1999) retrospectively was questioned. This provision provided for grant of deduction of profits made by Societies by the marketing of agricultural produce. The Kerala High Court had taken a view that the benefit of exemption was available to all Cooperative Societies from the village to the Apex level. This was reversed by a Division Bench of the Supreme Court in Assam Cooperative Apex Marketing Society Limited Vs. CIT[3] which took the view that the object of the provision was to encourage basic level societies only and that the phrase in Section 80-P(2)(a) (iii) viz. marketing of agricultural "produce of its members" refers only to agricultural produce actually "produced by its members"

and that otherwise Cooperative Societies of traders would also become entitled to the exemption, which was not the intention of the Parliament. The Supreme Court in Kerala State Cooperative Marketing Federation Limited Vs. CIT[4] overruled the Assam Co-operative Apex Marketing Society Limited case (3 supra) and held that the word "of" in the above provision had been too restrictively construed in that case and that the legislature did not intend to confine the scope of the exemption only to Primary Societies and that this phrase "produce o f its members" must be construed as including any society engaged in marketing agricultural produce "belonging to"

its members. After this judgment was delivered, by the impugned amendment Parliament sought to amend the above provision by using the words "the marketing of agricultural produce grown by its members" in the place of "the marketing of agricultural produce of its members" occurring therein. The Delhi High Court rejected the challenge to the amendment and the same was confirmed by the Supreme Court. The Supreme Court held that the effect of the substitution would be that Section 80-P(2)(a) (iii) must be read as if the substituted phrase were included from the date that the Section was introduced in the statute i.e. 01-04-1968. It held that that legislature can enact laws retroactively and it can do so by removing the basis of the decision of a Court.

In my view, this decision also cannot apply because in the present case we are not concerned with retrospective legislation made by State legislature but with subordinate legislation made by the executive, which is normally only prospective in operation unless the statute authorizes a retrospective subordinate legislation expressly or by necessary implication[5]. Section 326 of the A.P. Municipalities Act, 1965 under which G.O.Ms.No.114 Municipal Administration and Urban Development (M) Department dt.14-03-2006 was issued, does not authorize making of Rules by the State Government with retrospective effect.

37.

Therefore, I reject the contention of the learned

Standing Counsel for 1st respondent that G.O.Ms.No.114 Municipal Administration and Urban Development (M) Department dt.14-03-2006 (substituting Rule 14 in the Andhra Pradesh Municipalities (Layout) Rules, 1970) has retrospective operation and also reject the contention that the said Rule 14 makes the construction of Community Hall by HASSS illegal.

38. Section 7 of the A.P. Urban Areas (Development) Act, 1975 provides for preparation of Zonal Development Plans and clause (d) of sub-section (2) of the said Section provides for its preparation keeping in view various matters including allotment of reservation of lands for roads, open spaces, gardens, recreation grounds, schools, markets and other public purposes. Section 13 of the Act provides for declaration of development areas and development of land in those and other areas. Section 14 of the Act contains provisions for obtaining permission from the HUDA for carrying on development. Sub-section (3) thereof states:

"(3) On receipt of an application for permission under subsection (1), the Authority, after making such enquiry as it consider necessary, in relation to any matter specified in clause (d) of sub-section (2) of Section 7, or in relation to any other matter, shall by order in writing either grant the permission, subject to such conditions, if any, as may be specified in the order or refuse to grant such permission". 39.

In my opinion, the permission granted vide letter No.956/P4/HUDA/89 dt.06-06-1989 granted by HUDA to

HASSS is referable to the above provision of law. So the construction of Community Hall etc by petitioner cannot be termed illegal. Under Section 57 (2) of the A.P. Urban Areas (Development) Act, 1975 (under which the HUDA operated), the provisions of the A.P. Urban Areas (Development) Act, 1975 would override the provisions of all other laws inconsistent therewith. Therefore, once the HUDA, exercising power under the said Act, had permitted conversion of the open space in the sanctioned layout for a Community Hall, it is not open to the 1st respondent to question the same.

40. The learned counsel for the 3rd respondent contended that the letter dt.25-11-2013 of HASSS (addressed to the petitioner under which HASSS acknowledged that the petitioner is a part and parcel of HASSS) is a fabricated letter, that it ought to be ignored and consequently, the petitioner ought to be declared as having nothing to do with the Community Hall constructed by HASSS and the Writ Petition should be dismissed on the said ground. A reference is made by the learned counsel for the petitioner to a letter dt.10-09-2005 said to have been addressed by HASSS to the petitioner, which was filed by the 3rd respondent wherein HASSS appears to have dissociated itself from the petitioner. But the letter dt.25-11-2013, relied upon by the petitioner, also refers to the letter dt.10-09-2005 and states categorically that the

petitioner is part and parcel of HASSS. It is not possible to give a finding in this proceeding under Article 226 of the Constitution of India that the letter dt.25-11-2013 is a forgery or a fabricated one and if the 3rd respondent is so advised, it may approach a competent Civil Court and get the said issue adjudicated.

41.

Since the order dt.27-11-2013 in W.A.No.742 of 2011 directed the 1st respondent to only determine whether there is any illegality in making construction of the Community Hall by HASSS, and since no finding in that regard had been given in the impugned order dt.15-02-2014 by the 1st respondent, and the material on record indicates that there is no illegality in the construction of the Community Hall by HASSS (since the HUDA had permitted its construction in 1989), the impugned order holding that the Community Hall etc along with appurtenant land would continue to vest in the 1st respondent and it is entitled to continue to manage the same under it's control, cannot be sustained. I am also of the opinion that the 1st respondent cannot justify the sealing of the premises under Section 461-A of the Act either since the said provision authorizes the Commissioner of 1st respondent to do so only if the construction in question is unlawful, and such is not the case here. There is no other provision in the Act which

entitles the 1st respondent to exercise control over the Community Hall etc. The petitioner also cannot be prima facie considered to be an encroacher in view of the letter dt.25-11-2013 addressed by HASSS to petitioner.

42. It is undisputed that the petitioner was in control and management of the Community Hall since it's construction in 1989 as the notice dt.18-07-2011 issued under Section 402 of the Act was addressed to it. It was the petitioner who questioned it by filing W.P.No.21886 of 2011 and the 3rd respondent had not questioned it. The 3rd respondent had admittedly come into existence only on 1707-2010 (as per the Certificate of Registration No.814 of 2010 filed by it) and had only got itself impleaded in W.A.No.742 of 2013. So the claim of the 3rd respondent as to its entitlement to manage the Community Hall etc., cannot be decided in this Writ Petition. Liberty is given to the 3rd respondent to approach a Civil Court and get the said issue decided.

43. Since the possession of the Community Hall etc., were taken by 1st respondent from the petitioner, the 1st respondent shall remove the seal on them and handover possession thereof to petitioner and desist from interfering at the behest of 3rd respondent in the management of the Community Hall etc., by petitioner. They shall also get the electricity service restored to the above premises by

paying all dues, penalty and charges from the funds of the 1st respondent. As regards the plea of petitioner that the respondents 1 and 2 shall also refund the revenue generated from the said premises from 10-11-2011 onwards, the petitioner is permitted to approach the civil court and recover the same from the 1st respondent.

44. The Writ Petition is accordingly allowed; the order in proceedings No.831/CH/UB/GHMC/2013 dt.15-02-2014 of the 1st respondent is declared illegal and arbitrary; a direction is issued to respondent Nos.1 and 2 to handover the Community Hall with two rooms and shed, Senior Citizens Hall, Welfare Association Hall and appurtenant land in Arul Colony to the petitioner forthwith; the respondent Nos.1 and 2 shall also get electricity service connection restored to the above premises by paying all dues, penalty and charges from the funds of the 1st respondent; the petitioner is permitted to approach the civil court for refund of the revenue generated from the said premises from 10-11-2011 onwards from 1st respondent; liberty is given to 3rd respondent to approach a Civil Court and get it's claim for entitlement to manage the Community Hall etc., decided; and 1st respondent shall also pay costs of Rs.5,000/- (Rupees Five Thousand only) to the petitioner within two weeks from the date of receipt of a copy of this

order for its arbitrary and highhanded action in taking over the above premises without any authority of law.

45. As a sequel, miscellaneous petitions pending, if any, shall stand disposed of.

__________________________________ JUSTICE M.S.RAMACHANDRA RAO Date: 20-01-2015 Kvr/Ndr/Vsv/ [1] (2005) SCC 396 [2] (2003) 5 SCC 23 [3] 1994 Supp.2 SC 1996 [4] (1998) 5 SCC 48 [5] Shree Sidhbhali Steels Limited Vs. State of U.P. [(2011) 3 SCC 193]