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Natraj Construction Co. and ors. Vs. Government of Andhra Pradesh and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAndhra Pradesh High Court
Decided On
Case NumberWrit Petn. Nos. 8238 and 8286 of 1981
Judge
Reported inAIR1984AP59
ActsAndhra Pradesh Urban Areas (Devlopment) Act, 1975 - Sections 2, 6, 7, 13, 14, 61 and 59(1); Constitution of India - Articles 19, 19(1) and 226; Bhagyanagar Urban Development Authority Zoning Regulations, 1981; Multistoreyed Building Regulations, 1981 - Regulations 5, 9, 10 and 11; Hyderabad Municipal Corporation Act, 1956 - Sections 586, 588 and 589; Municipal Corporation Building Bye-laws, 1981
AppellantNatraj Construction Co. and ors.
RespondentGovernment of Andhra Pradesh and anr.
Excerpt:
civil - validity of regulations - sections 2, 6, 7, 13, 14, 58 and 59 of andhra pradesh urban areas (development) act, 1975, bhagyanagar urban development authority zoning regulations, 1981, regulations 5, 9, 10 and 11 of multistoreyed building regulations, 1981, sections 586, 588 and 589 of hyderabad municipal corporation act, 1956, municipal corporation building bye-laws, 1981 and articles 19, 19 (1) and 226 of constitution of india - section 59 makes it clear that regulations can be made only to carry out purpose of act consistent with act or rules made thereunder - as per clause (h) of section 58 rules can be made prescribing fee to be paid on application for permission under section 14 - factors and circumstances has to be taken into consideration in determining fee - regulation can.....amareswari, j.1. the petitioners are 18 in number. they are common in both the writ petitions. they challenge the validity of 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. they also assail the validity of the building bye-laws of the municipal corporation of hyderabad, issued in g. o. ms. no. 995 dated 7-8-1981, and published on 10-8-1981. the writ petitions were heard together and are disposed of by this judgment.2. 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......
Judgment:

Amareswari, J.

1. The petitioners are 18 in number. They are common in both the Writ petitions. They challenge the validity of 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. They also assail the validity of the Building bye-laws of the Municipal Corporation of Hyderabad, issued in G. O. Ms. No. 995 dated 7-8-1981, and published on 10-8-1981. The writ petitions were heard together and are disposed of by this Judgment.

2. 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 Corporation of Hyderabad. Chapter XII of the Hyderabad Municipal Corporation Act, 1955, deals with the Building Regulations. The bye-laws are framed in exercise of the power under this Chapter. Chapter deals with planning and Development.

3. It cannot be gainsaid that in the recent past population in the urban areas had increased beyond all proportions. The urban development and town planning had not measured up to the standard and slums have developed haphazardously, with the result that even people living in 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 (deveopment) Act, 1975, for short, the Urban Act, was enacated by the State Legislature. It came into force on 27-1-1975. It is patterned on the Delhi Development Act of 1957 and the Town and Country Planning Act of 1947 of England. It is a legislation enacated for the development of Urban areas according to plan and for matters ancillary thereto.

4 . 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 Cl. (e) as meaning (i) the carrying out of all or any of the works contemplated in a master plan or Zonal Development plan referred to in this Act, and (ii) the carrying out of building, engineering, mining or other operations, in, or, 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 Cl. (2) as including a house, outhouse 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 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 prepare a zonal development plan for each of the zone. 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 areas after coming into operation of any of the plans unless such development is also in accordance with such plans. Under Section 14 (1) 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 14 (3) envisages that the aforementioned application has to be considered by the authority in the light of the matters specified in S. 59 which vests the HUDA with power to make regulations with the previous approval of the Govt. to carry out the purpose of the Act. Section 59 (1) deals with the general power. Section 59 Clause (1) sub-clauses (a) to (l) 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) mentions that any other matters may be determined by the Regulations. In exercise of the power under Section 59 the HUDA framed the Zoning Regulations and the Multi-storyed Building Regulations.

5. 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 permission 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 6, 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. They say that the Act is concerned only with the drawing of the master plan and other plans and odes 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 development 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 to 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.

6. On the other hand, it is submitted by Mr. P. M. Gopal 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 to must be held to include construction of buildings in accordance with the plans.

7. 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 thereunder, 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'

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 Cl. (3) 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 rebuilding 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 (c) as follows :-

'2 (c) 'building includes- (i) a house, out-house, stable, latrine, godown, shed, hut, wall (other than a boundary wall) and any other structure whether of massonry, 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 makes 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 are drawn 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' occurring in Section 13 (5) would be rendered otiose. 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. Sec. 14(3) says that after conducting enquiry into any matter specified in clause (d) of sub-section (2) of Section 7 of the Authority may grant or refuse to grant permission. Clause (d) of sub-section (2) of Sec. 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 Corporation 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 Corporation Act, Chapter XIII is repealed expressly. Section 61 (b) says that the Rule or Regulations of the Hyderabad Municipal Corporation Act which is inconsistent with the provisions of the Act shall have no effect. All that it means is that while Chapter XIII of the Municipal Corporation Act stands repealed so far as development area is concerned, Chapter XII is repealed only to the extent to inconsistency. The building regulations or bye-laws made under Municipal Corporation 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 of the land with reference to individual buildings. We therefore, hold that the Zoning Regulations and the Multi-storeyed Buildings 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.

8. 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 v. Ram Chand, : [1965]3SCR218 and State of Orissa v. Binapani Dei, : (1967)IILLJ266SC .

9. 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 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 instance, 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 al (vide J. Kumar v. Union of India, : [1982]3SCR453 The two decisions cited by Sri M. N. Phadke have no bearing on the question. Shri Bhagwan v. Ram Chand, : [1965]3SCR218 , it is a case in which the question was whether 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 Bina Pani's case (State of Orissa v. Binapani Dei, : (1967)IILLJ266SC , 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.

10. Reliance was placed upon Bagalkot City Municipality v. Bagalkot Cement Co., : AIR1963SC771 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 requires 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-law. 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. In 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.

11. 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 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.

12. 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 ultra vires 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.

13. The petitioners challenge the validity of Regulations 9, 10, 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. (iii) before the words 'side 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. 1. (iii) 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, projections of a balcony into open space was limited up to one meter and in the present regulation it is limited to 0.9 metres width up to 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 ratio mentioned in Regulation 10 is not unreasonable. The said restrictions 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.

14. 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 requirement 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.'

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. metree 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 Services. 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 services 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 Regn. 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 in unconstitutional.

15. 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 spaces to be left between the Multi-storeyed block of the building and the outline of the plot and Regulation 10 (ii) deals with the minimum space to be left between two 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 (i) (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' as unreasonable. It is said that the 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 Art. 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 that 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 Regulation that construction up to 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 odes 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 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 suffers from this vice except to the extent indicated above.

16. 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. 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 newspapers, that the petitioners who filed their objections were not given a personal hearing in spite 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 the procedure 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 10-8-1981. As regards non-publication in the news-papers, it is said that publication was made in the Telugu and Urdu newspapers on 23-3-80 and in English newspapers 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 newspapers six weeks at least before the day of the meeting by advertisement in the Official Gazette and in the local newspapers six weeks at least before the day of the meeting at which the Corporation 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 in the Gazette and the newspapers at least 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 is imperative to give notice of the date of consideration at least 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, renders 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 newspapers the petitioners contend that the bye-laws are not published in the Newspapers. It is true that the bye-laws are not published in the Newspapers. But in the paper publication dated 23-3-1980 and 25-3-1980 there was a reference tot he 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 n fact pursuant to the publication in the Newspapers 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 and also a hearing was given to the objectors, 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 impugned bye-laws are made in contravention of the statutory procedure.

17. It is contended that bye-law 6.3 is contrary to Sections 437 and 440 of the Municipal Corporation Act as it goes for 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 produce 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 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 proceed 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 for deemed permission to operate. We therefore hold that bye-law 6.3 to the extent of enlarging the period of 30 days for the deemed permission to be operative goes for 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-laws 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 Sections 452, 461 and 636 of the Municipal Corporation Act. Bye-law 13.1 is in consonance with Sec. 455 of the Hyderabad Municipal Corporation 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 or to be removed. There is nothing unreasonable in this bye-law and the same is in consonance with Section 456 of the Municipal Corporation Act. Further, an appeal is provided under Section 654 (6) against such an order of the Commissioner.

18. It is lastly submitte4d that 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.

19. In the result, the writ petitions are allowed except to the extent indicated above; that is Cl. (6) of Regulation 5 of the Multi-storeyed Building Regulations of 1981, as framed in G. O. Ms. No. 917 dated 11-8-1981, prescribing a fee of Rs. 5/- per square meter of the sanctioned built-up areas 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.

20. Order accordingly.


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