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CASE NO.: Appeal (civil)  6156-6157 of 2002

PETITIONER: A.P. HOUSING BOARD

RESPONDENT: ADARSHA WELFARE ASSOCIATION & ANR

DATE OF JUDGMENT: 13/04/2007

BENCH: C.K. THAKKER & LOKESHWAR SINGH PANTA

JUDGMENT: J U D G M E N T

C.K. THAKKER, J.

       These appeals are filed by the Andhra Pradesh  Housing Board against the judgment dated October 3,  2001 in Writ Petition Nos. 18755 and 19215 of 2001. The  above petitions were filed by the petitioners Adarsha  Welfare Association and Vengal Rao Nagar (Housing  Board Colony), Allottees and Residents Association in  Public Interest Litigation (PIL). A writ of mandamus was  sought against the Housing Board making available open  space in Vengal Rao Nagar Housing Board Colony at  Hyderabad by restraining it from making any  construction in the ’lung space’ area earmarked for ’park’  contrary to the provisions of the Andhra Pradesh Housing  Board Act, 1956 (hereinafter referred to as ’the Act’).         The facts leading to the present controversy have  been set out by us extensively in Civil Appeal No. 3942 of  2002 and companion matters decided by us today and it  is not necessary to repeat them in this case. Suffice it to  say that the Housing Board had acquired forty-five acres  of land for public purpose, viz. for construction of  dwelling units for its employees (Vengal Rao Nagar  Housing Board Colony). The Housing Board, however,  could get possession only of forty-three acres of land and  the possession of land admeasuring two acres could not  be obtained because of encroachment over the land by  hutment dwellers. Construction was to be made as per  the layout which was approved by the Town Planning  Authorities of Municipal Corporation of Hyderabad (MCH)  in accordance with the provisions of the Act. Spaces were  also earmarked for Parks, Commercial Community  Centres as also for Green Area. The Housing Board could  not allot a portion of land earmarked for park area since  it was encroached by hutment dwellers. The grievance of  the petitioners before the High Court was that since the  land earmarked for park was not available, Commercial  Zone under the plan should not be permitted to be used  for that purpose by the Housing Board unless the ’green  area’ is made available.  Till then the said area must be  ordered to be kept open.         In the affidavit in reply filed by the Board, it was  stated that the area which was earmarked for  Commercial Zone under the Development Plan under the  Act was sought to be utilized for the said purpose.  Such  use could not be said to be contrary to law and prayer of  the petitioners could not be granted. Commercial

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complex is also a public purpose and when the area is  sought to be used for the purpose for which it was  reserved and administrative sanction has been accorded  by the Government as well as by Municipal Corporation  of Hyderabad (MCH), no objection could be raised against  such legal project. It was, therefore, submitted that the  petitions deserve to be dismissed.         The High Court, considering the relevant provisions  of the Act, observed that the Housing Board was right in  submitting that Commercial Zone was in accordance with  layout for which sanction was granted by the Authorities  under the Act. But relying on the decisions of this Court  in M.C. Mehta v. Union of India & Ors., (2001) 4 SCC 577 :  JT 2001 (3) SC 207, Bangalore Medical Trust v. B.S.  Muddappa & Ors., AIR 1991 SC 1901 : JT 1991 (3) SC  172 and M.I. Builders Pvt. Ltd. v. Radheshyam Sahu &  Ors., JT 1999 (5) SC 42, the High Court held that ecology  must be given primacy and since there was unauthorized  encroachment of land earmarked for public park, till  such encroachment is removed, commercial activities  cannot be permitted to be undertaken at the site as per  layout till sufficient land is made available for public  park. According to the High Court ’lung space’ must be  available for the residents of the locality. The High Court concluded; "Once the requisite ’lung  space’ is provided to the residents of the area, the State  may proceed to make constructions in the proposed  shopping complex area."   The petition was accordingly  allowed and necessary directions were issued to the  Housing Board. The Housing Board has challenged the  said decision.         It was submitted by the learned counsel for the  appellant-Board that the High Court committed an error  of law in issuing the above directions, particularly after  recording a finding that construction of Commercial Zone  was in accordance with layout and after obtaining  sanction from the competent authorities under the Act. It  was also submitted that reliance on the decisions  referred to by the High Court, in the facts and  circumstances of the case, was not proper.         In our opinion, the submission is well founded and  deserves to be upheld. When the provisions of the Act  have been followed and the land which is required to be  used as per layout has been used strictly in consonance  with such layout, it cannot be said that by doing so, the  Housing Board has committed any illegality. Once the  High Court had recorded the finding that the land in  question was earmarked for commercial purpose, it must  be held that the Board had power to construct shopping  complex as per the requisite sanction granted by the  authorities. No objection can be taken against such a  course and the High Court was not justified in interfering  with the lawful action of the Board.         For the foregoing reasons, in our opinion, the  appeals deserve to be allowed and are accordingly  allowed by setting aside the order passed by the High  Court. In the facts and circumstances of the case,  however, there shall be no order as to costs.