K. Venkat Ram Reddy and Others Vs. Hyderabad Urban Development Authority - Court Judgment

Excerpt:
property - maintenance of colony - article 226 of constitution of india - residential colony developed by respondent and handed over to nagar municipality - problems regarding maintenance arose - petition filed for same against respondent - respondent contended that nagar municipality liable for maintenance of colony as same after development handed over to municipality - contention accepted and petitioner directed to approach municipality regarding maintenance problem. - motor vehicles act (59 of 1988)section 149 (2): [v. gopala gowda & jawad rahim, jj] insurers entitlement to defend the action joint appeal by insured and insurer - held, the language employed in enacting sub-section (2) of section 149 appears to be plain and simple and there is no ambiguity in it. it shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action only on grounds enumerated in sub-section (2) of section 149 of the act, and no other grounds are available to it. the insurer is not allowed to contest the claim of the injured or heirs of the deceased on other grounds, which are available to the insured. if insurer is permitted to contest the claim on other grounds it would mean adding more grounds of contest to the insurer and will be negation of the intention of the legislature and annihilate mandate of the provisions of sections 170 and 149 of the act. the insured can pursue appeal only after giving up the insurer as the appellant and not otherwise. in the instant case, the insurer has not withdrawn from party array but has remained prosecuting the appeal with the insured on the grounds which are available only to the insured. therefore, the joint appeal as filed by the insured and the insurer is not maintainable. section 166: [v. gopala gowda & jawad rahim, jj] claim for compensation accident due to mechanical defect in the vehicle held, it is not in dispute that the claimant suffered injuries in an accident, which occurred during the course of his employment, albeit due to his negligence but law does not render him remediless. statutory right is conferred on him, accruing by virtue of his employment under insured to claim compensation under workmens compensation act. the insurer is statutorily duty bound to discharge the liability of the owner of the vehicle, to pay such compensation to the employee, as mandated under the provisions of section 149 of the act. the right of an injured employee or his dependents as the case may be to be compensated, when injury is suffered or death occurs during his employment, is recognised not only under workmens compensation act, but also under benevolent provisions under section 166 and 167 of the m.v. act. the right of driver to seek compensation is not restricted only to the workmens compensation act, it has been enlarged to enable such person to seek just compensation (sections 166 and 168), conferring upon him the right of election engrafted under section 167 of the act to choose either of the two forum. the only defence which the insurer could take is limit of its liability as enumerated under section 147 of the act, leading to contest, inter alia, only between insured and insurer and does not impact claimants right to recover the compensation determined by the tribunal which crystallizes into enforceable right against both. in the instant case, the claimant/driver has exercised right of election under section 167 of the act to seek compensation under section 166 of the act resulting in award passed by the tribunal. therefore, the insured and the insurer have no escape but to discharge the said award as directed. undisputedly, in this case as deduced for proved facts, the vehicle in question was not properly maintained by the owner and despite faulty brake system, the claimant had undertaken the hazardous journey to his peril at the behest of and at the instruction of the owner. the owner is therefore, tortfeasor. section 168: [v. gopala gowda & jawad rahim, jj] insurers limit of liability - held, it is well settled that the liability of the insurance company for payment of compensation can be statutory or contractual. is for the insurance company to show that the insurance policy was a statutory policy and not a contractual policy to restrict its liability. that issue was neither raised before the tribunal nor is raised in this appeal requiring decision. thus, if at all the insurer has any valid ground to restrict its liability, it can proceed against the insured but firstly it has to discharge the award as required under section 149 (1) of the act. where the owner/insured has failed to maintain the vehicle as per prescribed safety standards and has caused the claimant to drive the vehicle with mechanical defects, the owner would be the tortfeasor and the claimant can maintain a petition seeking compensation under the provisions of the act, instead of seeking compensation under the workmens compensation act. on facts, held, the material evidence on record, particularly, with regard to the income of the claimant, his age, medical evidence and the evidence relating to pecuniary loss has not been considered by the tribunal in the correct perspective, which has resulted in passing of the impugned award, disproportionate to the pecuniary loss and the loss of future income of the victim. the settled principles governing determination of compensation has been given a go-bye. compensation of rs.4,15,150/- awarded by the tribunal was enhanced to rs.8,20,000/-. - bring a statutory authority is bound to honour its promise, more especially, when the petitioners have purchased the plots which have no essential amenities like roads, paths, water supply and drainage system. the complex contained certain infrastructure facilities like b. it is clearly understood that the grampanchayat will not have any right or claim overother areas or properties that are not specificallyindicated in the layouts.orderg. bikshapathy, j. 1. the petitioners approached this court for issue of writ of mandamus compelling the respondent to leave 60 fts. wide road from hyderabad --vijayawada national high way to the colony and for other connected reliefs. 2. it is their case that the hyderabad uraban development authority (for brevity h.u.d.a.) was constituted under a,p. urban areas (dvelpmenl) act, 1975 for the purpose of developing the areas by providing all civil amenities. a vast area in saroornagar was developed as rcidential and commercial complexes and the area was acquired by h.u.d.a. paying compensation @ rs. 10/- per sq. yard. after development, it was sold to the individual members in the year 1979 with a promise to complete the developmental works viz., laying of b.t. road and providing other amenities as mentioned in the prospectus issued by the h.u.d.a. during 1976. 3. it is the case of the petitioners that ihc respondent h.u.d.a. had not provided the necessary road and it has bucked out on its promise. the h.u.d.a. bring a statutory authority is bound to honour its promise, more especially, when the petitioners have purchased the plots which have no essential amenities like roads, paths, water supply and drainage system. therefore, they seek appropriate directions. 4. the learned standing counsel for h.u.d.a. submits that all the infrastructurel facilities such as roads, water supply, drainage system, street lights etc. were provided to the plots as early as in the year 1981 and the same were handed over to saroornagar gram panchayat on 19-8-1991 udner the proceedings issued by the h.u.d.a. in file no. pru/496/80, dt. 19-8-1991. he also submits that all the roads were laid and in fact some of the roads were widened. there was only one problem with regard to the drainage system which was getting chockcd-up frequently for improper maintenance. since the saroornagar gram panchayat merged in l.b. nagar municipality, the municipality was directed totake necessary action in this regard. therefore, nothing remains in the writ petition and therefore, the writ petition is liable to be dismissed. 5. the point that arises for consideration it whether the petitioners are entitled for any relief as prayed for? 6. it is true that in pursuance of the prospectus issued by the h.u.d.a. the petitioners purchased the plots and the h.u.d.a. being statutory authority under the act is required to provide necessary infrastructures to the plots. but, the respondent has already stated that as early as in 1981, the entire developments were completed and the areas were handed over to the then saroornagar gram panchayat. therefore, it is the responsibility of the concerned gram panchayat or the municipality as the case may be to maintain and look after the civil amenities. in this regard, it is necessary to extract the contents of the latter issued by the h.u.d.a. dt. 19-8-1991, which reads as under: 'huda, as a part of its development activities, has developed a residential complex at saroornagar over an area of 23 acres situated at ranga rcddy district. the complex contained certain infrastructure facilities like b.t. roads, drainage with septic tanks, water supply from bore wells. plantation. electric polls for street lights and open spaces for paiks and playground. only sites and services programme under open plot development was taken up and the developed plots, have been sold and houses on them arc coming up. saroornagar gram panchayat vide reference cited passed a resolution requisting huda to hand over saroornagar residential complex to it. the hyderabad urban development authority under section 33 of the a.p. urban areas (development) act, 1975 also passed a resolution no. 9 in its 16th meeting held on 25-1-1980 resolving to transfer the saroornagar residential complex to the grama panchay at for maintenance of civic facilities, etc. as per the standards. the huda vide ils various letters requested the district panchayat officer to coordinate the transfer of the complex to the gram panchayat. today, the hyderabad urban developmemt authority transfers the saioornagar residential complex to the saroornagar grama panchayat represented by its executive officer along withthe following infrastructure facilities. 1. a layout showing the total area covered by the complex. 2. a layout showing the roads with a statement of detail. 3. water supply with a statement showing the details. 4. drainage with a statement showing the details. 5. street lights, poles with a statement showing the details. for the purpose of water supply two 'persons by name sri ramulu and sri rajamallaiah have been appointed by the huda and they are paid rs. 6.75 power day as per the prevailing rate under n.m.r, the said two persons are also transferred to the gram panchayat with effect from today. the overhead tank has been constructed keeping in view the overall requirement of water to be supplied under various phases of development under the total project. any new colony that will be developed by the huda will be supplied water for domestic purposes from this overhead lank. ; it is clearly understood that the grampanchayat will not have any right or claim overother areas or properties that are not specificallyindicated in the layouts. in token of the taking over of the complex, the sarpanch, and executive 'officer of the saroornagar gram panchayat-hereby consents this letter in the presence of the district panchayat officer.' thereafter; to find out the exact situation as on the date, the executive engineer, division iii of h.u.d.a. has also given instruction to the learned standing counsel on 6-2-1997 which are as follows: '1. the tenders for the work of widening of road from 40'-0' to 80'-0' were called for in the month of march 1986 and the work was completed in nov. 1986. 2. the 30'-0' wide road connecting the n.h.9 on the north-west side of the layout was completed and handed over to the local gram panchayat (saroornagar) on 19-8-1981, which was latter on merged in the l.b. nagar municipality. 3. the length of the proposed 60'-0' wideroad in the nala region within the huda boundary is 21.5 metres. 4. the road widened from 40'-0' to 80'-0' was handed over to l.b. nagar municipality on 1-5-1993 and the 30'-0' road connecting n.h. 9 was handed over to saroornagar gram panchayat along with colony for maintenance on 19-8-1981. 5. the review meeting was conducted by the minister of municipal administration for l.b . nagar municipality on 7-7-1996. during the meeting it was informed that the effluent darain passing through the nala is being chokedup due to improper maintenance. the l.b. nagar municipality was asked to take necessary steps.'from the above communication, it is seen that all the requsite infrastructure was already provided and if there is any drew back in the maimenance or deficiencies it is the responsibility of the l.b. nagar municipality to take necessary steps in this regard. however, the learned counsel for the petitioner mr. v. jogayya surma submits that drainage system is not being properly maintained on account of which not only the area is getting foul smell but also the drain water is flowing into the colony area, thereby creating serious healthy bazards to the inhabitants. though, he tried to place before this court, the news item reported in deccan chronicle, but we did not take note of it, as it is for the authorities to take action if there is any deficiency. it cannot be said that h.u.d.a. has not provided these amenities. but, at, the same time, the maintenance is the responsibility of the local municipality and it is for the petitioners to approach the municipality for necessary action ii there is any such requirement. however, it is accepted by the respondents that there is a problem with regard to the discharge of drain effluent as it is getting choked up frequently for improper maintenance. again it is the responsibility of the municipality which has to take care of it. since the entire colony has been handed over to the municipality, it is the responsibility of the municipality to take note of the deficiencies and rectify the same within a reasonable lime. 7. under these circumstanecs, the writ petition is disposed of with a direct ion that the petitioners shall make a written representation to the l.b. nagar municipality under whose control colonynow falls pointing out the deficiencies in the maintenance or provisions of the amenities, within a period of six weeks from the date of receipt of copy of this order. on such representation, the l.b. nagar municipality shall lake appropriate action in the matter and ensure that the essential amenities are provided without causing hardship to the inhabitants of the locality, a copy of this order shall be forwarded to the commissioner, l.b. nagar municipality for necessary action. 8. the writ petition is disposed of accordingly. no costs. 9. order accordingly.

Judgment:
ORDER

G. Bikshapathy, J.

1. The petitioners approached this Court for issue of writ of mandamus compelling the respondent to leave 60 fts. wide road from Hyderabad --Vijayawada National High Way to the colony and for other connected reliefs.

2. It is their case that the Hyderabad Uraban Development Authority (for brevity H.U.D.A.) was constituted under A,P. Urban Areas (Dvelpmenl) Act, 1975 for the purpose of developing the areas by providing all civil amenities. A vast area in Saroornagar was developed as rcidential and commercial complexes and the area was acquired by H.U.D.A. paying compensation @ Rs. 10/- per sq. yard. After development, it was sold to the individual members in the year 1979 with a promise to complete the developmental works viz., laying of B.T. road and providing other amenities as mentioned in the prospectus issued by the H.U.D.A. during 1976.

3. It is the case of the petitioners that Ihc respondent H.U.D.A. had not provided the necessary road and it has bucked out on its promise. The H.U.D.A. bring a statutory authority is bound to honour its promise, more especially, when the petitioners have purchased the plots which have no essential amenities like roads, paths, water supply and drainage system. Therefore, they seek appropriate directions.

4. The learned Standing Counsel for H.U.D.A. submits that all the Infrastructurel facilities such as roads, water supply, drainage system, street lights etc. were provided to the plots as early as in the year 1981 and the same were handed over to Saroornagar Gram Panchayat on 19-8-1991 udner the proceedings issued by the H.U.D.A. in File No. PRU/496/80, dt. 19-8-1991. He also submits that all the roads were laid and in fact some of the roads were widened. There was only one problem with regard to the drainage system which was getting chockcd-up frequently for improper maintenance. Since the Saroornagar Gram Panchayat merged in L.B. Nagar Municipality, the Municipality was directed totake necessary action in this regard. Therefore, nothing remains in the writ petition and therefore, the writ petition is liable to be dismissed.

5. The point that arises for consideration it whether the petitioners are entitled for any relief as prayed for?

6. It is true that in pursuance of the prospectus issued by the H.U.D.A. the petitioners purchased the plots and the H.U.D.A. being statutory authority under the Act is required to provide necessary Infrastructures to the plots. But, the respondent has already stated that as early as in 1981, the entire developments were completed and the areas were handed over to the then Saroornagar Gram Panchayat. Therefore, it is the responsibility of the concerned Gram Panchayat or the Municipality as the case may be to maintain and look after the civil amenities. In this regard, it is necessary to extract the contents of the latter issued by the H.U.D.A. dt. 19-8-1991, which reads as under:

'HUDA, as a part of its development activities, has developed a residential complex at Saroornagar over an area of 23 acres situated at Ranga Rcddy district.

The complex contained certain infrastructure facilities like B.T. roads, drainage with septic tanks, water supply from bore wells. plantation. electric polls for street lights and open spaces for paiks and playground. Only sites and services programme under open plot development was taken up and the developed plots, have been sold and houses on them arc coming up.

Saroornagar gram panchayat vide reference cited passed a resolution requisting HUDA to hand over Saroornagar residential complex to it.

The Hyderabad Urban Development Authority under Section 33 of the A.P. Urban Areas (Development) Act, 1975 also passed a resolution No. 9 in its 16th meeting held on 25-1-1980 resolving to transfer the Saroornagar Residential complex to the grama panchay at for maintenance of civic facilities, etc. as per the standards. The HUDA vide ils various letters requested the District Panchayat Officer to coordinate the transfer of the complex to the gram panchayat.

Today, the Hyderabad Urban Developmemt Authority transfers the Saioornagar Residential complex to the Saroornagar Grama Panchayat represented by its Executive Officer along withthe following infrastructure facilities.

1. A layout showing the total area covered by the complex.

2. A layout showing the roads with a statement of detail.

3. Water supply with a statement showing the details.

4. Drainage with a statement showing the details.

5. Street lights, poles with a statement showing the details.

For the purpose of water supply two 'persons by name Sri Ramulu and Sri Rajamallaiah have been appointed by the HUDA and they are paid Rs. 6.75 power day as per the prevailing rate under N.M.R, The said two persons are also transferred to the gram panchayat with effect from today. The overhead tank has been constructed keeping in view the overall requirement of water to be supplied under various phases of development under the total project. Any new Colony that will be developed by the HUDA will be supplied water for domestic purposes from this overhead lank.

; It is clearly understood that the GramPanchayat will not have any right or claim overOther areas or properties that are not specificallyindicated in the layouts.

In token of the taking over of the complex, the Sarpanch, and Executive 'Officer of the Saroornagar Gram Panchayat-hereby consents this letter in the presence of the District Panchayat Officer.'

Thereafter; to find out the exact situation as on the date, the Executive Engineer, Division III of H.U.D.A. has also given instruction to the learned Standing Counsel on 6-2-1997 which are as follows:

'1. The tenders for the work of widening of Road from 40'-0' to 80'-0' were called for in the month of March 1986 and the work was completed in Nov. 1986.

2. The 30'-0' wide road connecting the N.H.9 on the North-West side of the layout was completed and handed over to the Local Gram Panchayat (Saroornagar) on 19-8-1981, which was latter on merged in the L.B. Nagar Municipality.

3. The length of the proposed 60'-0' wideroad in the Nala region within the HUDA boundary is 21.5 Metres.

4. The road widened from 40'-0' to 80'-0' was handed over to L.B. Nagar Municipality on 1-5-1993 and the 30'-0' road connecting N.H. 9 was handed over to Saroornagar Gram Panchayat along with colony for maintenance on 19-8-1981.

5. The review meeting was conducted by the Minister of Municipal Administration for L.B . Nagar Municipality on 7-7-1996. During the meeting it was informed that the effluent darain passing through the Nala is being chokedup due to improper maintenance. The L.B. Nagar Municipality was asked to take necessary steps.'

From the above communication, it is seen that all the requsite infrastructure was already provided and if there is any drew back in the maimenance or deficiencies it is the responsibility of the L.B. Nagar Municipality to take necessary steps in this regard. However, the learned counsel for the petitioner Mr. V. Jogayya Surma submits that drainage system is not being properly maintained on account of which not only the area is getting foul smell but also the drain water is flowing into the colony area, thereby creating serious healthy bazards to the inhabitants. Though, he tried to place before this court, the news item reported in Deccan Chronicle, but we did not take note of it, as it is for the authorities to take action if there is any deficiency. It cannot be said that H.U.D.A. has not provided these amenities. But, at, the same time, the maintenance is the responsibility of the local Municipality and it is for the petitioners to approach the Municipality for necessary action ii there is any such requirement. However, it is accepted by the respondents that there is a problem with regard to the discharge of drain effluent as it is getting choked up frequently for improper maintenance. Again it is the responsibility of the Municipality which has to take care of it. Since the entire colony has been handed over to the Municipality, it is the responsibility of the Municipality to take note of the deficiencies and rectify the same within a reasonable lime.

7. Under these circumstanecs, the writ petition is disposed of with a direct ion that the petitioners shall make a written representation to the L.B. Nagar Municipality under whose control colonynow falls pointing out the deficiencies in the maintenance or provisions of the amenities, within a period of six weeks from the date of receipt of copy of this order. On such representation, the L.B. Nagar Municipality shall lake appropriate action in the matter and ensure that the essential amenities are provided without causing hardship to the inhabitants of the locality, A copy of this order shall be forwarded to the Commissioner, L.B. Nagar Municipality for necessary action.

8. The writ petition is disposed of accordingly. No costs.

9. Order accordingly.