Important Judgement's JUDGMENT UPHOLDING THE MULTI-STOREYED BUILDING REGULATIONS, 1981, HUDA ZONING REGULATIONS, 1981 & MCH BUILDING BYELAWS, 1981 In the High Court of Judicature, Andhra Pradesh, at Hyderabad (SPECIAL ORIGINAL JURISDICTION) Thursday, the twenty fourth day of February, One thousand nine hundred and eighty three PRESENT: The Honourble Mr. K. Madhava Reddy Acting Chief Justice a n d The Honourable Mrs. Justice Amareswari WRIT PETITION NO. 8238 & 8286 OF 1981 (for C.T. vide separate sheet attached) W.P.No. 8238/81:           Petition under Article 226 of the Constitution of India praying that in the circumstances stated in the affidavit filed herein, the High Court will be pleased to issue a writ order or direction declaring the Municipal Corporation of Hyderabad Building Bye-Laws 1981 published in the Rules Supplement Part-II extraordinary of the A.P. Gazette dated 10-8-81 in G.O.Ms.No. 905, Housing, Municipal Administration and Urban Development areas, as illegal, invalid and ultravires under the provisions of the Hyderabad Municipal Corporation Act and the writ be allowed with costs. W.P.No. 8286/81:-  (Vide separate C.T. attached) Petition praying that in the circumstances stated in the affidavit filed herein, the affidavit filed herein, the High Court will be pleased to issue a writ, order or direction declaring that the (i) Multi storeyed Building Regulations and (ii) Zoning Regulations Statement No.11, published in the Andhra Pradesh Gazette dated 13th August, 1981 in G.O.Ms.No. 917, are illegal, invalid in operative and Ultra-vires under the provisions of the Andhra Pradesh Urban Areas Development Act, 1975 and the Constitution of India and the Writ Petition be allowed with costs. For the Petitioners:                                  M/s.  M.N.Phadki, P. BabuluReddy, Advocates.   in both the petitioners       For the 1st Respondent                            The Advocate General and   in both the Petitioners:                           The Government Pleader for Panchayatraj. For the 2nd Respondent                                   The Advocate General.   In W.P.No. 8238/81:  For the 3rd Respondent                 Mr. P.M. Gopal Rao, Standing Counsel for Huda.     In W.P.No. 8286/81:  The Court delivered the following: (WRIT PETITION NOS. 8238 AND 8286 OF 1981) Judgement: (Judgement of the Bench delivered by AMARESWARI, J.) ___________________________ Between: 1. M/s.Natraj Construction Company,         represented by its Partner, Shri Shankerlal, Agarwal. 2. M/s.Amrit Apartments, represented by its partner         Shri Arun Gala. 3. M/s.Jeevandas & Bros, per partner Shri Krishna Das. 4. M/s.Land Mark Builders, per partner, Shri Irfan Hussain. 5. M/s.Srinivas Constructions per partner Shri Raghunada Rao. 6. M/s.Laxmi Builders, per partner Shri Jitendernath. 7. M/s.Dhananjaya Hotels Pvt. Ltd. Per partner         Shri Jitendernath. 8. M/s.Shanti Constructions per partner         Sri Satish Sanghi. 9. M/s.Modi Builders per partner Sri Satish Modi. 10. M/s.Fasions Builders per partner Sri Ram Moorjani. 11. M/s.Meridian Constructions per Managing Partner         Shri Shivcharan. 12. M/s.Srinath Constructions per partner         Shri Shivcharan. 13. M/s.La’builde Corporation represented by        Sri Yagnesh Sachdev. 14. M/s.Satguru Builders, Sri Vijay Kumar (partner). 15. M/s.Victoria Commercial Complex represented by        Sri S. Lalit Kumar Gupta. 16. M/s.Saradars Constructions Pvt. Ltd. Per its        Director Sri K.L.N. Reddy. 17. M/s.Rock Hills Constructions per partner        Shri Chandra Prakash Tibrewala. 18. M/s.Badruka Land Development & Construction Co.     Per Manager Sri Srikishan Badruka.                                                   ......      Petitioners.                            A n d 1.   Government of Andhra Pradesh, represented by its       Secretary, Housing, Municipal Administration and       Urban Development Department, Secretariat, Hyderabad. 2.   Municipal Corporation of Hyderabad, a local public       Statutory body represented by its Special Officer,       Having its head office at Tank bund Road, Hyderabad.                   ….      Respondents. The Petitioners are 18 in number.  They are common in both the Writ Petitions.  They challenge the validity of the Bhagyanagar Urban Development Authority Zoning Regulations issued in G.O.Ms.No. 916 dated 11-8-1981 and published on 13-8-1981 and the Multi-storeyed Building Regulations, 1981 issued in G.O.Ms.No. 917 dated 11-8-1981 and published on 13-8-1981.  The also assail the validity of the Building bye-laws of the Municipal Corporation of Hyderabad issued in G.O.Ms.No. 905 dated 7-8-1981 and published on 10-8-1981.  The Writ Petitions were heard together and are disposed of by this Judgement. The petitioners are builders and constructors of multi-storeyed complexes in various places in the Municipal limits of the twin cities of Hyderabad and Secunderabad.  Construction of buildings and laying of roads within the Municipal limits was  always regulated by Rules and bye-laws made by the Municipal Corporation of Hyderabad.  Chapter XII of the Hyderabad Municipal Corporations Act, 1955 deal with the Building Regulations.  The bye-laws are framed in exercise of the power under this Chapter.  Chapter XIII deals with Planning and Development. It cannot be gain said that in the recent past population in the urban areas had increased beyond all proportions.  The urban development and town planning had not measured upto the standard and slums have developed hap hazardously.  With the result that even people living in the cities were not having the required amenities.  There was a long-felt need for setting up of development authorities for metropolitan cities and other large towns to supervise the various activities connected with housing, etc., and for looking after the planning and development.  It is for this purpose, the Andhra Pradesh Urban Areas (Development) Act, 1975 for short, the Urban Act, was enacted by the State Legislature.  It came into force on 27.1.1975.  It is pattened on the Delhi Development Act of 1957 and the Town and Country Planning Act of 1947 of England.  It is a legislation enacted for the development of Urban areas according to plan and for matters ancillary thereto. So far as it is relevant for our purpose, “Urban Area” is defined as including the area comprised within the jurisdiction of the Municipal Corporation of Hyderabad.  The word “development” is defined in Section 2 Clause (e) as meaning (I) the carrying out of all or any of the works contemplated in a master plan for Zonal development plan referred to in this Act, and (ii) the carrying out of building, engineering, mining orother operations in, on, over or under land, or (iii) the making of any material change in any building or land and includes re-development.  The word “building” is defined in Section 2 Clause © as including a house, out-house etc.  In exercise of the power conferred under Section 3 of the Act, the State Government had constituted the Hyderabad Urban Development Authority (HUDA) for the Hyderabad Urban area with effect from 2.10.1975.  Several powers are conferred on this body to be exercised for the purpose of securing the development of the urban area.  Section 6 of of the Act directs that the HUDA shall prepare a master plan for the development area concerned.  Section 7 directs that along with the plan, the authority shall also prepared a zonal development plan for each of the zones.  Section 13(1) empowers the State Government to declare certain urban areas as development areas for the purpose of the Act.  Section 13(4) directs that no development of land within the development area shall be undertaken or carried out by any person or body including any department of the Government unless permission for such development has been obtained in writing from the HUDA.  Section 13(5) says that no development shall be undertaken or carried out within the development area after coming into operation of any of the plans nless such development is also in accordance with such plans.  Under Section 1491) persons desiring to obtain permission to develop any area shall make an application to the HUDA containing such particulars as may be prescribed by the Regulations.  Section 13(3)  envisages that the aforementioned application has to be considered by the authority in the light of the matters specified in Section 7 Clause (2) sub-clause (d) of the Act.  Section 59 vests the HUDA to make regulations with the previous approval of the Government to carryout the purpose of the Act.  Section 59(1) deals with the general power.  Section 59 Clause (1) sub-clauses (a) to (1) enumerate the specific matters in regard to which regulations can be made.  Section 59(1) (f) relates to the form in which an application for permission under Section 13 and 14 shall be made and the particulars to be furnished in such application.  Section 59(1) (1) mentions that any other matters which may be determined by the Regulations.  In exercise of the power under Section 59 the HUDA framed the Zoning Regulations and the Multi-storeyed Building Regulations. The main contention of the petitioners is that the regulations are ultravires of Section 59(1) of the Act.  The HUDA has no power to regulate construction of buildings.  The purpose of the Act is to develop lands and the expression "development” used in the Urban Act means only the general development and use of the land.  The Act is not concerned with construction of individual buildings and granting of permissions for individual buildings.  They say that the purpose of the Act is to develop the land and is therefore limited to preparation of plans and approving the layouts.  The learned Counsel referred to the definition clauses in Section 2 and the objects and powers of the authority mentioned in Section 5 of the Act and contended that the definition of the word “development” occurring in Section 2(e) must be understood as referring to development of land generally and as having no relationship to the individual uses to which a piece of land or building may be put to.  They say that the Act is concerned only with the drawing of the master plan and other plans and does not take in any individual  use.  In support of this contention, reference was made to Sections 6 and 7 which deal with the preparation of master plans and the zonal devlopment plans.  As a limb of this argument, they pointed out that while Chapter XIII of the Municipal Corporation Act which deal with the development of the land is repealed, Chapter XII which concerns building regulations, is not repealed.  The retention of the Chapter “building regulations” in the Municipal Corporations Act indicates the intention of the Urban Act to control only the use of the land and not individual constructions, argues the Counsel. >On the other hand, it is submitted by Mr. P.M. Gopala Rao, appearing for the Authority that the expression “development” cannot be given a restricted meaning and having regard to the purpose of the Act as transparent from the relevant provisions, it must be held to include construction of buildings in accordance with the plans. The Zoning Regulations and the Multi-storeyed Buildings Regulations are framed by the Authority in exercise of its power under Section 59 of the Urban Act.  Section 59(1) is as follows:-       “59(1):  The Authority may, with the previous approval of the Government, make regulations consistent with this Act and the rules made the render, to carry out the purposes of this Act and without prejudice to the generality of this power, such regulations may provide for –           XX                XX                XX                XX                XX       (f) the form in which any application for permission under Section 13 and 14 shall be made and the particulars to be furnished in such         application:       (g) the terms and conditions subject to which user of lands and buldings in contravention of plansmay be continued:       (h) the manner of communicating the ground of refusal or permission for development.           XX                XX                XX                XX                XX Section 59 makes it clear that Regulations can be made only to carry out the purpose of the Act consistent with the provisions of the Act or the Rules made thereunder.  The preamble says that the Act is enacted for development of urban areas according to plan and matters ancillary thereto.  The expression “development” is defined under Section 2 Clause (e) as to mean the carrying out of all or any of the works contemplated in a master plan or zonal development plan referred to in the Act and the carrying out of building, engineering, mining or other operations in, on, over or under land, or the making of any material change in any building or land and includes re-development.  Section 2 Clause (d) defines “Building operations” and it says that building operations” include re-building operations, structural alterations of, or additions to buildings and other operations normally undertaken in connection with the construction of buildings.  The expression “building” is defined under Section 2 Clause © as follows:-                    “2©:  “building” includes, -                    (i) a house, out-house, stable, latrine, godown, shed, hut,                    wall (other than a boundary wall) and any other structure                    whether of masonry, bricks, mud, wood, metal or any                 other material whatsoever”. The language employed in every one of these definitions is of wide import.  It includes all buildings, buildings in general and buildings in particular.  There is nothing in these expressions to show that the purpose of the Act is not to cover any construction of individual buildings.  The words “making of any material change in any building” occurring in Clause (e) of Section 2 which defines “development” are significant.  Even a change in any building is defined as development.  A reading of the definitions of building operations, building, development, together make it abundantly clear that development means and includes construction of individual buildings and covers even a change in a building.  Then we have Section 13 which deals with the method and manner in which the land can be developed.  Section 13(4) says that no development of land within the development area as notified by the Government under Section 13(1) can be done except in accordance with the permission granted by the HUDA.  Section 13(5) says that, no development shall be carried out unless such development is also in accordance with the master plan and the zonal development plans after such plans are prepared as required under Section 6 and 7.  Thus while Section 13(4) declares that the development must be in accordance with the permission granted by the authority, Section 13(5) says that it must also be in accordance with the master plan and the zonal development plan.  Before the plans are drawn the development must be in accordance with the permission and after the plans and down it must be in accordance with the plans also. Thus both before and after the preparation of the plans the development can only be in accordance with the permission granted.  If the argument of the petitioners is to be accepted, there will be no scope for the operation of Section 13(4).  Further, the words “also in accordance with such plans” accurring in Section 13(5)  would be rendered oties.  Section 13(4) and Section 13(5) together indicate that the Act is concerned not only with the general development of the land and preparation of master plan and the zonal plans, but also with individual buildings. It refers to permission being obtained both before and after the plans are drawn.  Section 14(1)  directs that application to obtain permission referred to in Section 13 must be in the form prescribed by the Regulations.  Section 14(3) says that after conducting enquiry into any matter specified in Clause (d) of sub-section (2) of Section 7 the authority may gtrant or refuse to grant permission.  Clause (d) of sub-section (2) of Section 7 says that the zonal plan must provide in particular for erection of buildings on any site and the restrictions in regard to open spaces to be maintained in or around buildings.  Section 14(5) says that if no order is passed within ninety days permission shall be deemed to be granted.  All these provisions make it clear that the Urban Act is concerned not only with the general development of land, but also with individual constructions.  It is true that Section 61 repeals only Chapter XIII of the Hyderabad Municipal Corporations Act which is styled as “development of land” and does not repeal Chapter XII dealing with “building regulations”.  But from this it cannot be spelt out that the purpose of the act is limited to the drawing of plans alone.  Since the Act exhaustively provides for all matters enumerated in Chapter XIII of the Hyderabad Municipal Corporations Act, Chapter XIII is repealed expressly.  Section 61(b) says that any Rules or Regulation of the Hyderabad Municipal Corporations Act, Chapter XIII is repealed expressly.  Section 61(b) says that any Rules or Regulation of the Hyderabad Municipal Corporation Act which is inconsistent with the provisions of the Act shall have no effect.  All that is means is that while Chapter XIII of the Municipal Corporations Acts stands repealed so far as Development area is concerned, Chapter XII is repealed only to the extent of inconsistency.  The building regulations or bye-laws made under Munmicipal Corporations Act co-exist with the regulations framed under this Act except to the extent of inconsistency and where they are inconsistent, the Regulations framed under the Urban Act prevail.  There is nothing in Section 61 of the Urban Act to suggest that the Act does not cover use of the land with reference to individual buildings.  We therefore, hold that the Zoning Regulations and the Multi-storeyed Building Regulations of 1981 are not inconsistent with any of the provisions of the Urban Act or the Rules made thereunder.  We are also unable to hold that the said regulations do not carry out the purpose of the Act or cover matters which are extraneous to the Act.  The Regulations are therefore intra-vires. It is next submitted that the Regulations affect the rights of parties and as such there is an implied duty to give a hearing before making them.  In support of this contention, the learned Counsel Sri M.N. Phadke relied upon SHRI BHAGWAN Vs. RAM CHAND (1) and STATE OF ORISSA Vs. BINAPANI DEI (2). Section 59 of the Act confers power on the HUDA to make regulations.  The Section requires that the regulations must be made with the previous approval of the Government and they should not be inconsistent with the provisions of the Act.  As long as ------------------------------------------------------------------------------------------------------ (1)  A.I.R. 1965, Supreme Court, 1767. (2) A.I.R. 1967, Supreme Court, 1269. ------------------------------------------------------------------------------------------------------ these conditions are satisfied the regulations cannot be held to be bad in law.  There is no implied duty to hear the parties in such matters.  For instances, in the case of Rules to be framed by the Government Section 58 requires that the Rules should be placed before the house of the Legislature as soon as they are made and similarly it is said that regulations must be framed with the prior approval of the Government.  The framing of regulations is in the nature of a legislative power.  It is not a quasi-judicial function.  Hence the principles of natural justice have no application at all.  (Vide J. KUMAR Vs. UNION OF INDIA (3).  The two decisions cited by Sri M.N. Phadke have no bearing on the question.  SHRI BHAGWAN Vs. RAM CHAND (1) is a case in which the question was ehether in exercising the powers under Section 3(2) of the U.P. (Temporary) Control of Rent and Eviction Act, the authorities have to follow the principles of natural justice.  Having regard to the scheme of the Act, it was held that a hearing was necessary and that such a duty can be interfered by implication though it was not an express requirement of the Section.  We fail to see how this case can render any assistance to the petitioners.  Similarly, in BINAPANI’s case (STATE OF ORISSA Vs. VINAPANI DEI (2) it was held that even administrative orders which involve civil consequences have to be passed consistently with rules of natural justice.  It is a case where an order was passed on a disputed date of birth without giving a hearing to the party and it was ruled by the Supreme Court that a hearing was necessary. Reliance was placed upon BAGALKOT CITY MUNICIPALITY Vs. BAGALKOT CEMENT CO. (4) in which the bye-laws framed under the Bombay District Municipalities Act were struck down on the ground that they were not published.  Section 48(2) of the Bombay Municipalities Act require that the bye-laws should be published for information of the persons likely to be affected thereby by publishing a draft of the proposed bye-laws and there are provisions in the said Act enabling persons to make objections and suggestions regarding the proposed bye-laws.  The bye-laws were held to be invalid, as  there was a violation  of statutory provision.   This case is easily distinguishable as Section 59 of the Urban Act does not require pre-publication of the draft regulations.  We, therefore, hold that the impugned regulations do not suffer from any legal infirmity.  N fact in Para 18 of the counter, it is stated that before framing the regulations discussions were held with the President of the Architect Association and representatives of various interests. As a limb of the same argument, it is submitted that the regulations are in the nature of bye-laws and hence prior publication inviting objections is imperative.  We are unable to agree.  The  regulations  cannot  be  equated  to  bye-laws.     As  observed  supra  the   provi- ---------------------------------------------------------------------------------------- (1) A.I.R. 1965, Supreme Court, 1967.       (1982) 2 S.C.C. 116. sions of Section 59(1) under which the regulations are framedsupra the provisions of Section 59(1) under which the regulations are framed are amply complied with and prior approval of the Government was obtained as required. It is next submitted that the Regulations are unreasonable and hence liable to be struck down.  This submission has no force.  It is a settled principle of law that no regulation can be held to be invalid except on the ground of inconsistency with any provision of a statute or rule or ultravires the Act, or infringes the fundamental rights of a citizen.  Reasonableness of the Regulations cannot be the subject matter of judicial determination as they are framed in exercise of legislative power. The petitioners challenge the validity of Regulations 9, 10 and 11 on the ground that they constitute unreasonable restrictions on their right to carry on trade.  Regulation 9 relates to open spaces around and inside the building.  Regulation 10 deals with floor area ratio and coverage and Regulation 11 deals with parking places.  It is submitted that there are no sub-clauses (I), (ii) and (iii) in Regulation 9.2.1 and the reference to them is meaningless.  In the counter affidavit it is stated that No. (ii) was missing before the words “rear open space” and No. (iv) before the words “the open space” and that it was a print mistake.  This appears to be correct as Clause (iv) of Regulation 9.2.1 says “the open spaces mentioned in 9.2.1(i), 9.2.1(ii) and 9.2.19iii) shall be for buildings of height of 10 metres”.  The regulations were correctly printed later and the copy placed before us shows sub-clauses (i), (ii) and (iii).  The print mistake is immaterial.  It is then said that the restrictions regarding projections in Regulation 9.2.3 are unreasonable restrictions.  But we find that even the old Municipal bye-laws contain these restrictions on projections into the open space.  The old bye-law 26(2) of the Municipal Corporation, projection of balcony into open space was limited upto one meter and in the present regulation it is limited to 0.9 meters width upto 50% of the length of the open space.  It is only very minimal changes that are brought about by these regulations.  The floor area coverage mentioned in Regulation 10 is not unreasonable.  The said restriction is imposed in certain areas depending upon the density of the population.  We find that such restrictions were there even earlier.  None of the fundamental rights of the petitioners are affected by these regulations.           It is submitted that Regulation 5 of the Multi-storeyed Building Regulations operates as an unreasonable restriction on the enjoyment and use of the property and Regulation 5(6) prescribing a fee of Rs.25,000/- to be paid as a Fire  Precaution  Fund is arbitrary and is not commensurate with the services rendered by the Fire Precaution Authorities.  It is not in the nature of a fee and hence ultra-vires of the Act.  Regulation 5 (1) of the Multi-storeyed Building Regulations is as follows:- “5.  Approval of Director of Fire Services, fees  and  cess  prior  Clearance of  Director of Fire Services of Andhra Pradesh, Hyderabad – (1) All the Building  plans showing the necessary  fire protection  and  fire  fighting  requirements  as per these regulations shall be submitted  to the  Director of  Fire  Services,  Andhra Pradesh, Hyderabad for  their  clearance  before  the  Building  Plans are approved by the local body” ----------------------------------------------------------------------------------------------------------- (2) A.I.R. 1967, Supreme Court, 1269. (4) A.I.R. 1963, Supreme Court, 771. All that this Regulation says is that the building plan must show that sufficient provision is made for fire protection and fire fighting requirement as prescribed by these regulations and that the plan must be approved by the Director of Fire Services.  In case of fire accidents, there must be enough space for fire engines to operate.  It is therefore felt that the plans should be scrutinised and approved by a technical person as Director of Fire Services.  It is a regulation which is conceived in the general interest of the public and we see nothing objectionable as to operate as an unreasonable restriction.  But however, the fee prescribed under Clause (6) of Regulation 5 has no proportion to the services rendered.  Regulation 5(6) is as follows:- 5”(6).  At the time of application to the Director  of Fire  Services  for approval under  these regulations  the  Builder/owner shall  pay an amount calculated  at the  rate  of Rs.5/- per  sq.m.  of sanctioned built-up areas  of each  building subject to a minimum of Rs.25,000/- to the Fire Precaution Fund as per prescribed procedure.  The entire amount shall be refundable without any interest in case the building proposal is subsequently dropped”. Regulation 5 is captioned as “Approval of Director of Fire Services, fees and cess prior clearance of Director of Fire Services of Andhra Pradesh, Hyderabad”.  What is contemplated under this Regulation is the fee to be deposited for scrutiny and approval of the plans by the Director of Fire Servicdes.  The fees must be commensurate with the services rendered.  At this juncture the services rendered by the Director of Fire Services is only to scrutinise the application to see whether adequate provision is made to meet any emergency in case of fire accidents as prescribed by the Regulation in this regard.  The averment in the counter affidavit that the fire services of the State requires special equipment like long ladders, ropes and powerful engines to control fire and other accidents and for maintenance of such equipment funds are necessary is untenable.  The special equipment like ladders, ropes and powerful engines are to be maintained by the State as a part of its administrative activity and there is a special Act dealing with fire safety services prescribing a particular procedure.  The amount of Rs.5/- per square meter of the sanctioned built-up area subject to a minimum of Rs.25,000/- is highly arbitrary and disproportionate to the services rendered by the fire service department at this stage.  In this connection we may refer to Section 58 the rule making power of the Government.  Clause (h) of Section 58 says that rules can be made prescribing the fee to be paid on an application for permission under Section 14 and the factors and circumstances to be taken into consideration in determining such fee.  Any regulation can only be in consonance with the rule making power of the Government and the rules contemplate only a fee to be prescribed for an application for permission.  We therefore hold that Clause (6) of Regulation 5 prescribing a fee of Rs.5/- per square meter of sanctioned built-up area subject to a minimum of Rs.25,000/- of the Multi-storeyed Building Regulations as unconstitutional.           The petitioners next challenged Regulation 9 prescribing the maximum plot coverage and floor area ratio, Regulation 10 dealing with open spaces around the building as unreasonable.  Regulation 10(I) deals with the open space to be left between the multi-storeyed block of the building and the outerline of the plot and Regulation 10(ii) deals with the minimum space to be left between multi-storeyed buildings situated in the same plot.  A minimum distance has to be ensured between the two blocks in the same plot to secure proper ventilation and provision for movement by fire fighting services in case of need.  A comment is also made about Regulation (10(1)(d) prescribing provision of open spaces in addition to parking spaces as highly unreasonable and that if the said regulation is to be implemented multi-storeyed buildings cannot be built-up on small plots.  They also criticised that Regulation No.3(a)  restricting the construction of multi-storeyed buildings in certain zones mentioned in Appendix ‘A’ cover almost the entire area of the twin cities with the result that where there is need they are prohibited and where there is no need they are permitted.  The learned Counsel submits that the total prohibition in certain areas violates Article 19(1)(g) of the Constitution of India.  In the counter it is mentioned that there is no total prohibition on the construction of the multi-storeyed buildings.  It is pointed out that only such buildings whose height is more than 15 meters or more, or a building with more than four floors is prohibited since these areas are heavily over-crowded and congested and the traffic conditions do not provide for accommodation for more floors and prohibition is limited to less than 1/4th area in the Municipal Corporation limits.  It is evident from the Regulations that construction upto four floors is permissible in the area.  Taking into account the various averments in the counter affidavit, we are of the view that they are reasonable restrictions made in public interest and does not infringe any fundamental rights of the petitioners.  Further, these regulations are made in consultation with several persons with some expertise on the subject and in the light of suggestions made by them.  From the counter it is seen that the State Government by G.O.Ms.No.668, Municipal Administration dated 9.10.1980 constituted a working brief with some members to study the building rules for construction of multi-storeyed buildings.  The committee consisted of (1) The Secretary, Housing, Municipal Administration and Urban Development Department; (2) Special Officer, Municipal Corporation of Hyderabad; (3) Vice-Chairman, Hyderabad Urban Development Authority; (4) Director of Town Planning, Hyderabad; (5) Director of Fire Services; (6) Commissioner of Police and (7) President of Local Chapter of Member Indian Institute of Architecture.  On the suggestions made by them, the regulations were made.  It is not desirable to interfere with such regulations unless they are highly irrational.  We are unable to say that any one of these regulations suffer from this vice except to the extent indicated above.           We will now take up Writ Petition No. 8238 of 1981.  The grievance is about the Building Bye-laws of the Municipal Corporation of Hyderabad as amended in G.O.Ms.No. 905 dated 10-8-1981.  The main objection is that the procedure contemplated under Section 588 of the Municipal Corporation Act is not followed, that the draft bye-laws were not advertised in the local daily news papers, that the petitioners who filed their objections were not given a personal hearing inspite of a request made by them through the Andhra Pradesh Builders Association.  They also say that the approval given by the first respondent namely, the State Government without specifying that theprocedure has been followed is illegal.  In the counter filed on behalf of the 2nd respondent these allegations are denied.  It is stated that the draft bye-laws were published in the Andhra Pradesh Gazette No. 16 dated 24.4.1980 calling for objections and suggestions within six weeks from the date of the publication, that in pursuance of the Gazette Notification, 11 written objections were received, that on 4-6-1980 the Special Officer, Chief City Planner, Municipal Corporation of Hyderabad and Chief Planning Project Officer, Hyderabad Urban Development Authority and Assistant Engineer, Municipal Corporation of Hyderabad considered the objections received for and on behalf of the Architects, that again another meeting was held on 11.6.1980 in which discussions were held with the builders, that on 6-3-1981 and 7-3-1981 the General Body and the Standing Committee approved and recommended for sending the bye-laws to the Government and the Government accorded sanction and issued G.O.Ms.No. 905 and that the same were published in the Gazette dated 10-8-81.  It is stated that by mistake, the date of the resolution of the General body is not mentioned in the Gazette dated 10-8-81.  As regards non-publication in the News Papers, it is said that publication was made in the Telugu and Urdu News papers on 23-3-1980 and in English News Papers on 25-3-1980, that the draft bye-laws would be taken up for consideration on a date, after expiry of six weeks from the date of publication in the Gazette.  The same averments are made in the counter affidavit filed on behalf of the 1st respondent, the Government of Andhra Pradesh.  Section 588 of the Municipal Corporation Act is as follows:- “588.  Hearing by Corporation of objections to proposed bye-laws:- (1) No bye-law shall be finally approved by the Corporation unless  notice  of the intention of the Corporation to take the same into  their  consideration  has been given by advertisement in the Official Gazette and in  the  local news papers six weeks atleast before the day of the meeting at which the Corpo- ration finally consider such bye-law. (2) The Corporation shall, before approving any  bye-law  receive and  consider any objection or suggestion which may be made in writing by  any person  with respect thereto before the day of the said  meeting; and any  person  desiring to objection to a bye-law, on giving written notice to the Commissioner, not less than ten days before the day of  the  said  meeting, of the  nature  of  his  said objection may, by himself or his counsel,  attorney or  agent,  be heard  by  the Corporation thereto at the said meeting.” Section 589 of the Municipal Corporation Act is as follows:- “ 589.  Bye-law to be confirmed by Government:- No bye-law made under Section 586 shall have the force of law unless and until sanctioned by the Government and published  in  the Official  Gazette”. Under Section 588(1) it is obligatory on the part of the Corporation to give notice of the date of consideration of the draft bye-laws by advertising it is in the Gazette and the News Papers atleast six weeks before the day of the meeting at which the consideration of the bye-laws is taken up.  The Section does not in term say draft bye-laws themselves are to be published.  But it imperative to give notice of the date of consideration atleast six weeks before the day of meeting.  Under Section 588(2) it is obligatory on the part of the Corporation to receive and consider any written objections filed before the date of meeting and also to hear the objector if written notice of the objections is pending before the date of meeting.  Section 589 requires the sanction of the Government for any bye-law to have the force of law, that is to say, unless it is approved by the Government it cannot be given effect to.  In the light of these provisions it has to be seen whether the procedure prescribed was followed and violation if any, render the bye-laws invalid.  It is not disputed that the bye-laws have been published in the Andhra Pradesh Gazette Supplement to Part II dated 24.4.1980 calling for objections.  It is also mentioned that the bye-laws would be approved in the meeting to be held after six weeks from the date of publication of the notification.  Regarding publication in the News Papers the petitioners contend that the bye-laws are not published in the News Papers.  It is true that the bye-laws are not published in the News Papers.  But in the paper publications dated 23.3.1980 and 25.3.1980 there was a reference to the bye-laws to be published in the Gazette and that the same would be considered after six weeks from the date of publication in the Gazette and in fact pursuant to the publication in the News Papers and the Gazette, the petitioners filed their objections on 31-5-1980.  They were acknowledged by the Corporation on 2-6-1980.  The counter shows that the bye-laws were discussed at two meetings on 4-6-1980 and 11-6-1980.  The Andhra Pradesh Builders Association was represented and the draft bye-laws were approved by the General body and the Standing Committee on 7-3-1981 and 6-3-1981.  In the circumstances, it cannot be said that the provisions of Section 588 are not complied with.  Even if the bye-laws are not published in the papers since they are published in the Gazette, inviting objections even if there is a technical non-compliance,in our opinion it does not vitiate the bye-laws.  We are therefore unable to accept the contention advanced on behalf of the petitioners that the impunged bye-laws are made in the contravention of the statutory procedure.           It is contended that bye-law 6.3 is contrary to Sections 437 and 440 of the Municipal Corporations Act as it goes far beyond the section and as such it is liable to be struck down.  We find considerable force in this submission.  Under Section 437 of the Municipal Corporation Act, a person is entitled to proceed with the construction of the building according to the plan submitted by him if no orders are passed by the Commissioner within 30 days from the date of receipt of the plan i.e., there is a deemed permission under law and permission is deemed to have been granted if no order is passed.  But amended bye-law 6.3 says that in case no order is passed on the application within a period of 30 days, the applicant must immediately intimate the same to the Commissioner and if the Commissioner does not pass any order within 7 days of giving such notice then only the permission is deemed to be granted i.e., according to bye-law 6.3 the deemed permission does not operate immediately after the expiry of 30 days.  It is requires a further intimation by the applicant immediately after the expiry of 30 days and if no order is passed within 7 days from the receipt of the said notice, then only it can be deemed, that permission has been granted and the person is entitled to preceed with the construction.  This bye-law has the effect of putting additional conditions which are not contemplated by the Section and also has the effect of extending the period of deemed permission to operate.  We therefore hold the bye-law 6.3 to the extent of enlarging the period of 30 days for the deemed permission to be operative goes far beyond Section 437.  It is therefore invalid. The petitioners also challenged the validity of bye-laws 8.1, 9.1, 13.1, 13.1.3, 14.5, and 17.8.  We have examined these bye-laws carefully and we do not find that they are objectionable for any reason.  Under bye-law 8.1 a duty is imposed upon the authority to cause inspection of the work to be made within 14 days following the receipt of the notice failing which it shall be presumed that the authority has no objection to the construction.  As such, it does not cause any hardship or inconvenience to the intending builders.  Bye-law 9.1 is framed to avoid the consequences as envisaged in Section 452, 461 and 636 of the Municipal Corporations Act.  Bye-law 13.1 is in consonance with Section 455 of the Hyderabad Municipal Corporations Act.  Bye-law 13.1.3 enables the authorities to issue a temporary occupancy certificate and it does not cause any hardship to the builders.  Bye-law 14.5 which says that in case of emergency which in the opinion of the authority involves imminent danger to human life or health the decision of the authority shall be final and that the authority shall forthwith cause the building to be rendered safe and to be removed.  There is nothing unreasonable in this bye-law and the same is in consonance with Section 456 of the Municipal Corporations Act.  Further, an appeal is provided under Section 654(6) against such an order of the Commissioner. It is lastly submitted that the bye-law 17.8 which says that no proposed construction shall contravene any of the Zoning Regulations is invalid.  We see no reason to hold so.  In fact it is a reproduction of the old bye-law 70.  Further, it is of no consequence as the Zoning Regulations contain a provision that no construction can be made contrary to the Zoning Regulations and if there is any conflict between the Zoning Regulations and any other law for the time being in force, the Zoning Regulations prevail.  Even without the existence of bye-law 17.8 the same position prevails and no construction can take place contrary to the Zoning Regulations. In the result, the Writ Petitions are allowed except to the extent indicated above; that is Clause (6) of Regulation 5 of the Multi-storeyed Building Regulations of 1981 as framed in G.O.Ms.No. 917 dated 11.l8.1981 prescribing a fee of Rs.5/- per square meter of the sanctioned built-up area subject to a minimum of Rs.25,000/- towards the Fire Precaution Fund is struck down.  It is open to the respondents to fix a reasonable fee in consonance with the services to be rendered.  We also quash the bye-law 6.3 of the Municipal Corporation Building bye-laws, 1981 as amended in G.O.Ms.No. 905 dated 10-8-1981 to the extent that it requires a further notice to be given after the expiry of 30 days from the date of original notice.  In other respects, these writ petitions are dismissed.  In the circumstances of the case, there will be no order as to costs. Advocate’s fee Rs.200/- in each.                                                                                                    Sd/-                                                                                            24-2-1983. Sd/- Superintendent. Copyist Department, High Court of A.P., Hyderabad.                                                                                                Sd/-                                                                                       Asst. Registrar. (Fair copy to the Honourable Mrs. Justice Amareswari.) 1. The Secretary, Hiousing, Municipal Administration & Urban         Devellopment  Department, Govt. of A.P., Secretariat, Hyderabad. 2. The Special Officer, A Local Public Statutory body having its Head Office        at Tank bund road, Hyderabad. 3. The Vice-Chairman, Bhagyanagar Urban Development Authority,   Having its office at Sadhana Buildings, Hyderguda, Hyderabad. 4. 2 copies to the Govt. Pleader for Panchayatraj, High Court of A.P., Hyderabad.         (on usual terms). 5. W/R Copies. // True Copy // JUDGMENT UPHOLDING ACTION OF HUDA IN INSISTING OF URBAN LAND CEILING  CLEARANCE IN LAYOUTS 2002 SCCI.COM 238 SUPREME COURT OF INDIA Hon’ble Mr. Justice Y.K.Sabharwal and Hon’ble Justice K.G.Balakrishnan Government of AP and other Appellants Versus J,Sridevi and others Respondents Case No. Civil Appeal No. 7348 of 2001 Date of Decision: 12-4-2002 Appearing Advocates: For the Appellants: Sudhir Chandra, Ms. K.amaraeswari, Sr Advs., G.Prabhakar, A.Dwivedi, Advs. With them for the Respondnts: Shanti Bhusan, A.K.Ganguli, Sr Advs., G.Sesgairi Rao, C.Hanumantha Rao, Sanjay Pathak, SU.K Sagar, R.N.Keshwani, B.Sridhar, K.Ram Kumar, Advs/. With them Our Citation: 2002 SCCI.COM 238 Subject Index Urban land Ceiling and Regulation Act, 1976 – whether the property included in the Urban Agglomeration could be treated as urban land or continues to be an agriculture land ? – held this is not a case where the High Court should have directed HUDA to pass the layout plans without insisting for “No Objection Certificate” from the Special Officer-cum- Competent Authority – civil appeal allowed. JUDGMENT/ORDER JUDGMENT K.G.Balakrishnan :- This appeal is preferred by the State of Andhra Pradesh challenging the Judgment of the Division Bench of the High Court of Andhra Pradesh in Writ Appeal No. 968 of 1998. By the impugned Judgment of the Division Bench, the Judgment of the Learned Single Judge in Writ Petition No. 5929/97 was confirmed. The Writ Petition filed by the respondents praying that the lands owned by the respondents were outside the purview of the Urban land Ceiling and Regulation Act, 1976(hereinafter being referred as “UL(C&R) Act”) and that the Hyderabad Urban Development Authority (hereinafter referred to as “HUDA”) be directed to sanction the layout and group housing scheme submitted by the respondents without insisting for clearance certificate from the competent authority under the UL(C&R) Act. The Writ Petition was allowed and the State unsuccessfully challenged the judgment therein, in the Writ Appeal. 2. The respondents here in purchased an extent of 10 guntas of land each in Survey No 79 of Madhapur village by separate sale deeds in the year 1995. These lands originally beloned to one Agaiah Dhanger and his family who owned 96 acres of land in Survey No 79 of Madhapur village. The original land owner Agaiah Dhanger was served with a notice under Section 6(2) of the Act alleging that the land owned by him came within the purview of the UL(C&R) Act. It seems that the original landlord thereafter sold these properties to the respondents herein. The land was originally classified as agricultural land and the respondents after purchasing the property filed application for converting the same for residential purpose and the Government by G.O.Ms No. 467 MA dated 3-9-1996 granted permission to convert the same for residential purpose by collecting the requisite fee towards development charges. The respondents thereafter filed application before HUDA for sanction of layout. HUDA as well as the District Registrar insisted for clearance certificate from the Special Officer-cum Competent Authority under the UL(C&R) Act, but the respondents alleged that individually they were allowed 1000 square metres and . The respondents approached the Special Officer-cum Competent Authority and thereafter they filed the Writ Petition. 3.       The lands in Survey No. 79 including other Survry Nos. covering an extent of 96 acres in Madhapur village formed part of Moosapet Gram Panchayat. It is contended by the appellants that village Madhapur formed part of Moosapet Gram Panchayat which is included +in Col. 2 of Schedule I of UL(C&R)Act, 1976 and according to Section 2 (n) at Para (A) [I] of the UL(C&R)Act, it formed part of the Urban Agglomeration specified in Col. 2 of Schedule I of UL(C&R)Act, 1976 and the appellants contended that as the land was included within the Urban Agglomeration , any transaction without clearance as required under Section 5(3) read with Section 28 (a) of UL(C&R)Act, 1976 was invalid. The respondents on the other hand contended before the Learned Single Judge that at the time of purchase, the land in question was an agricultural land and on the date of purchase effected by the respondents, there was no legal restriction for the transfer of agriculture land situated in the peripheral area. According to the respondents, the land in question was neither an urban land nor a vacant land and the provisions of the UL(C&R)Act, 1976 do not apply. The contention of the respondents was that on the appointed day, i.e., 28-1-1996, the lands held by the vendors were agricultural lands and it was not covered by any Master Plan and the extension of the Master Plan by way of amendment to a particular area which was not included when the UL(C&R)Act came into force, cannot alter the original nature of the land. The contention of the respondents was that the Master plan which was amended on 26-8-1995 had no application and the same cannot be used for the purpose of  determining whether the land in question is coming within the purview of UL(C&R)Act or not. The respondents had also contended that pursuant to the request made by them after paying the requisite fees, the lands were converted into residential zone as per G.O.Ms 467 dated 3-9-1996 and only on that date the land became urban land coming within the purview of the UL(C&R)Act and as these respondents were individually holding about 1000 sq metres, it is within the ceiling limit prescribed under the Act. 4.       The Urban Land Ceiling & Regulation Act, 1976 came into force in the State of Andhra Pradesh on 17-2-1076. Section 2(h) of the UL(C&R) Act deals with the “Master Plan” in relation to the area within the Urban Agglomeration. 5.          Section 2(h) defines “Master plan” as follows: “Master Plan” on relation to an area within an urban agglomeration or any part thereof, means the plan (by whatever name called) prepared under any law for the tisme being in force or in pursuance of an order made by the State Government for the development of such area or part thereof and providing for the stages by which such development shall be carried out”; 6. Section 2(n) defined Urban agglomeration as: 7. “urban agglomeration”-    (a)     In relation to any state or Union Territory specified in Col.(1) of Schedule I means-    (i)     the urban agglomeration specified in the corresponding entry in Col.( 2) thereof and includes the peripheral area specified in the corresponding entry in Col. (3) thereof, and    (ii)     any other area which the State Government may, with the previous approval of the Central Government, having regard to its location, population(population being more than one lakh) and such other relevant factors as the circumstances may require, by notification of the Official Gazette, declare to be an urban agglomeration and any agglomeration so declared shall be deemed to belong to category D in that Schedule and the peripheral area therefore shall be one kilometer;    (iii)     (B)          in relation to any other State or Union Territory, means any area which the State Government may, with the previous approval of the Central Government, having regard to its location, population(population being more than one lakh) and such other relevant factors as the circumstances may require, by notification of the Official Gazette, declare to be an urban agglomeration and any agglomeration so declared shall be deemed to belong to category D in that Schedule and the peripheral area therefore shall be one kilometer”. 6.                Under Section 2(o) “Urban Land” means:    (i)      in case where there is no master plan, or where the master plan does not refer to any land as urban land, any land within the limits of an urban agglomeration and situated in any area included within the local limits of a municipality (by whatever name called) a notified area committee, a town area committee, a city and town committee, a small town committee, a cantonment board or a panchayat;    (ii)     but does not include any such land which is mainly used for the purpose of agriculture.   Explanation:- For the purpose of this clause and Cl. )q),- (A) “agriculture” includes horticulture, nut does not include- (i)  raising of grass, (ii) dairy farming, (iii) poultry farming, (iv) breeding of livestock, and (v) such cultivation or the growing of such plant, as may be prescribed; (B)              land shall not be deemed to be used mainly for agriculture, if such land is not entered in the revenue or land records before the appointed day as for the purpose of agriculture; Provided that where on any land which is entered in the revenue or land records before the appointed day as for the purpose of agriculture there is a building which is not in the nature of a farm-house then, so much of the extent of such land as is occupied by the building shall not be deemed to be used mainly for the purpose of agriculture; Provided further that if any question arises whether any building is in the nature if a farm-house such question shall be referred to the State government and the decision of the State government shall be final; (C)              notwithstanding anything contained in clause (B) of this Explanation land shall not be deemed to be mainly used for the purposed of agriculture if the land has been specified in the master plan for a purpose other than agriculture”. (D)              8. According to the appellants, in the master plan, the land involved herein is brought under the Urban Agglomeration. Therefore, the question whether the property included in the Urban Agglomeration could be treated as urban land or continues to be an agriculture land . On the date of commencement of the Act, i.e., on 17-2-199\76, the land was agriculture land. The question that came up at that time the UL(C&R) Act had no application to these lands. The question that came up for decision before the Learned Single Judge was whether by the inclusion of this land in the Urban Agglomeration under the Master Plan, the property would still continue to be excluded from the purview of the UL(C&R) Act. The Learned Single Judge relied on the decision of this Court in Atia Mohammad Begum (Smt.)  vs. State of U.P. and others (1883) 2 SCC 546 wherein this Court held that the area of vacant land in excess of the ceiling limit under the Act is to be determined with reference to the date  of commencement of the Act and the right and liability of the holder of the land for this purpose under the Act crystallizes on the date of commencement of the Act unaffected by any subsequent events. The scheme of the Act supports the construction that the aforesaid time of commencement of the Act for a purpose other than agriculture, then the land shall not be deemed to be mainly used for the purpose of agriculture by virtue of the Explanation and not if the land is specified in a master plan prepared after the commencement of the Act. 7. Based on the above decision, the learned Single Judge held that the respondents purchased lands which are situated outside the master plan in force on the appointed day, and as such, the provisions of the UL(C&R)Act will not be attracted on such lands, This view was upheld by the Division Bench. It may be noted that the view held in  Atia Mohammad Begum (Smt.) case (supra) was partly overruled by this Court in State of A.P. & Ors. Vs. N.Audikesava Reddy and others (2002) 1 SCC 227 to which one of us (Sabharwal, J.) is a party. It was held that the master plan prepared as per law in force even subsequent to the commencement of the Act is to be taken into consideration to determine whether a particular piece of land is vacant land or not and, to this extent, the decision in Atia Mohammad Begum case (supra) was partly overruled. The explanation appended to Section 6 (1) of the Act regarding “commencement of the Act” was taken note of by this Court and it was held in Para 13 at page 233-234 as follows:- 8.                  “--- Further, the Explanation to Section 6 (1), as noticed above, very significantly provides that every person holding vacant land ib excess of the ceiling limit at the commencement of the Act shall file a statement before the competent authority and the commencement of the Act under clause (ii) would be when the land becomes vacant for any reason whatsoever. Therefore, the date of commencement of the Act in a case where the land, which was not vacant earlier, would be the date on which such land becomes vacant land. It, thus, contemplates a situation of land, not being vacant, becoming vacant due to preparation of a master plan subsequent to 17-2-1976, Further, the provisions of the Act require filing of a statement under Sections 6,7,15 and 16 from time to time as  and when land acquires the character of a vacant land. Obligation to file statement under the Act arises when a person comes to hold any vacant land in excess of the ceiling limit, which date necessarily may not be 17-2-1976. It would all depend on the facts and circumstances of each case”. 10.In that view of the matter, we geel that the Division Bench was not justified in declaring that the lands owned by these respondents were outside the purview of the provisions of the UL(C&R)Act and also further directing HUDA to sanction forthwith the layout and the group housing scheme by the respondents. 11.     It may be noted that these respondents submitted application before the Special Officer-cum-Competent Authority alleging that they were holding land to the extent of 1000 sq meters and it is outside the purview of the UL(C&R)Act and that they may be given a certificate to that effect. These applications were not finally considered and disposed of by the Special Officer-cum-Competent Authority. Though the respondents contended that the Special Officer-cum-Competent Authority had made an endorsement in the official paper to the effect that the land involved was outside the purview of the Act, but no such order was communicated to the respondents, In the counter-affidavit filed by the state, it is specifically stated that no decision was taken on the application submitted by the respondents and before the decision was taken, the respondents approached the Court by filing the Writ Petition. When the applications were pending before the Special Officer-cum-Competent Authority, the High Court should have directed the authority to take an appropriate decision. When a statutory is vested with power to determine the question as to the applicability of the provisions of the Act, it is ordinarily desirable to leave the question within the framework provided under the Statute and the ultimate decision also could be challenged under judicial review, if permitted in law. Instead of undergoing the normal procedure, the respondents herein directly approached the High Court for the reliefs sought by them. 12.     The appellants would contend that the lands owned by these respondents are urban lands coming within the purview of the UL(C&E) Act. The respondents contend that originally the land in question was agriculture land and is continued to have the same identity and even if it was brought under the master Plan, it may not have any effect as regards the applicability of the UL(C&R(Act. The respondents would also contend that after 3-9-1996, it may come under the purview of the UL(C&R) act and the respondents individually owned 1000 sq meters and the same is within the prescribed ceiling limit. All These rival contentions are to be decided by Special Officer-cum-Competent Authority. After due regard to the various provisions contained in the relevant enactments, we do not think that this is a case where the High Court should have directed HUDA to pass the layout plans without insisting for “No Objection Certificate” form the Special Officer-cum-Competent Authority. 13.     We allow the Civil Appeal and direct that the Special Officer-cum-Competent Authority shall take a decision in the matter at the earliest, i.e., within a period of three months from this date. The parties would be at liberty to file any additional application or documents before the Special Officer-cum-Competent Authority to substantiate their contentions. We make it abundantly clear that whatever has been stated by us regarding the applicability of the UL(C&R)Act is only for the purpose of disposal of this appeal and it shall not have any persuasive effect on the Special Officer-cum-Competent Authority and he shall take an independent decision uninfluenced  by such circumstances. Continued...