Housing Board Vs. Adarsha Welfare Association & Anr  Insc 399 (13 April
C.K. THAKKER & LOKESHWAR SINGH PANTA
C.K. THAKKER, J.
These appeals are filed by the Andhra Pradesh Housing Board against the
judgment dated October 3, 2001 in Writ Petition Nos. 18755 and 19215 of 2001.
The above petitions were filed by the petitioners Adarsha Welfare Association
and Vengal Rao Nagar (Housing Board Colony), Allottees and Residents
Association in Public Interest Litigation (PIL). A writ of mandamus was sought
against the Housing Board making available open space in Vengal Rao Nagar
Housing Board Colony at Hyderabad by restraining it from making any
construction in the 'lung space' area earmarked for 'park' contrary to the
provisions of the Andhra Pradesh Housing Board Act, 1956 (hereinafter referred
to as 'the Act').
The facts leading to the present controversy have been set out by us
extensively in Civil Appeal No. 3942 of 2002 and companion matters decided by
us today and it is not necessary to repeat them in this case. Suffice it to say
that the Housing Board had acquired forty-five acres of land for public
purpose, viz. for construction of dwelling units for its employees (Vengal Rao Nagar
Housing Board Colony). The Housing Board, however, could get possession only of
forty-three acres of land and the possession of land admeasuring two acres
could not be obtained because of encroachment over the land by hutment
dwellers. Construction was to be made as per the layout which was approved by
the Town Planning Authorities of Municipal Corporation of Hyderabad (MCH) in
accordance with the provisions of the Act. Spaces were also earmarked for
Parks, Commercial Community Centres as also for Green Area. The Housing Board
could not allot a portion of land earmarked for park area since it was
encroached by hutment dwellers. The grievance of the petitioners before the
High Court was that since the land earmarked for park was not available,
Commercial Zone under the plan should not be permitted to be used for that purpose
by the Housing Board unless the 'green area' is made available. Till then the
said area must be ordered to be kept open.
In the affidavit in reply filed by the Board, it was stated that the area
which was earmarked for Commercial Zone under the Development Plan under the
Act was sought to be utilized for the said purpose. Such use could not be said
to be contrary to law and prayer of the petitioners could not be granted.
Commercial complex is also a public purpose and when the area is sought to be used
for the purpose for which it was reserved and administrative sanction has been
accorded by the Government as well as by Municipal Corporation of Hyderabad
(MCH), no objection could be raised against such legal project. It was,
therefore, submitted that the petitions deserve to be dismissed.
The High Court, considering the relevant provisions of the Act, observed
that the Housing Board was right in submitting that Commercial Zone was in
accordance with layout for which sanction was granted by the Authorities under
the Act. But relying on the decisions of this Court in M.C. Mehta v. Union of
India & Ors., (2001) 4 SCC 577 :
JT 2001 (3) SC 207, Bangalore Medical Trust v. B.S.
Muddappa & Ors., AIR 1991 SC 1901 : JT 1991 (3) SC 172 and M.I. Builders
Pvt. Ltd. v. Radheshyam Sahu &
Ors., JT 1999 (5) SC 42, the High Court held that ecology must be given
primacy and since there was unauthorized encroachment of land earmarked for
public park, till such encroachment is removed, commercial activities cannot be
permitted to be undertaken at the site as per layout till sufficient land is
made available for public park. According to the High Court 'lung space' must
be available for the residents of the locality.
The High Court concluded; "Once the requisite 'lung space' is provided
to the residents of the area, the State may proceed to make constructions in
the proposed shopping complex area." The petition was accordingly allowed
and necessary directions were issued to the Housing Board. The Housing Board
has challenged the said decision.
It was submitted by the learned counsel for the appellant-Board that the
High Court committed an error of law in issuing the above directions,
particularly after recording a finding that construction of Commercial Zone was
in accordance with layout and after obtaining sanction from the competent
authorities under the Act. It was also submitted that reliance on the decisions
referred to by the High Court, in the facts and circumstances of the case, was
In our opinion, the submission is well founded and deserves to be upheld.
When the provisions of the Act have been followed and the land which is
required to be used as per layout has been used strictly in consonance with
such layout, it cannot be said that by doing so, the Housing Board has
committed any illegality. Once the High Court had recorded the finding that the
land in question was earmarked for commercial purpose, it must be held that the
Board had power to construct shopping complex as per the requisite sanction granted
by the authorities. No objection can be taken against such a course and the
High Court was not justified in interfering with the lawful action of the
For the foregoing reasons, in our opinion, the appeals deserve to be allowed
and are accordingly allowed by setting aside the order passed by the High
Court. In the facts and circumstances of the case, however, there shall be no
order as to costs.