Andhra HC (Pre-Telangana)
Om Prakash Gupta And Ors. vs State Of A.P. Rep. By Its Secretary, ... on 30 December, 1996
Equivalent citations: 1997(1)ALT397, 1997 A I H C 2177, (1997) 2 ANDHLD 115 (1997) 1 ANDH LT 397, (1997) 1 ANDH LT 397
JUDGMENT G. Bikshapathy, J.
1. This Writ Petition is filed challenging the Permit No. 405 of 66 dated 21-11-1992 in File No. 142/2/21/92/1 to 4 issued by the 2nd respondent - Commissioner, Municipal Corporation of Hyderabad in favour of the 3rd respondent as illegal, invalid and contrary to law.
2. The case contains voluminous facts. The 3rd respondent is the owner of house bearing Municipal No. 21-2-142/1 to 4 having an extent of 102 Square Yards situated at Charkaman, Hyderabad. She applied for permission to construct a house by relaxing the rules. The Government issued G.O.Rt. No. 1835 dated 29-10-1984 relaxing the rules in favour of 3rd respondent. However, the 3rd respondent abusing the permission granted to her had constructed three floors without any prior permission from the Municipal Corporation. Thereupon, the Municipal Corporation issued notices Under Section 452 of the Hyderabad Municipal Corporation Act (for short 'H.M.C. Act') on 11-7-1988 and Under Section 636 on 14-7-1988. Against the final notice Under Section 636, the 3rd respondent filed a suit in O.S.No. 932 of 1985 on the file of II Assistant Judge, City Civil Court, Hyderabad and obtained status quo orders. Under the garb of the status quo orders, the 3rd respondent made construction of ground floor and two upper floors by encroaching the ground area to the extent of 30 Square yards belonging to the Municipal Corporation. On account of the encroachment and illegal construction, the petitioners being the neighbours are put to serious inconvenience and traffic flow has been obstructed considerably. It is the case of the petitioners that when the 3rd respondent was constructing the house in violation of the sanction orders of the Municipal Corporation, they filed a Writ Petition before this Court and it was disposed of with a direction that the 3rd respondent shall construct the building in accordance with the Government orders and sanction plan of the Corporation. But, however, again violation was resorted to by the 3rd respondent. Therefore, the petitioner gave a complaint to the Corporation on 8-5-1991, upon which, the Corporation had issued a demolition notice on 18-5-1991. Against the said demolition notice, the 3rd respondent filed W.P.No. 10021 of 1991. In the meanwhile, the petitioners came to know that the 3rd respondent filed a suit O.S.No. 1932 of 1985 and the same was decreed. Subsequently, she filed E.P.No. 3 of 1988 for execution of the decree. Aggrieved by the proceedings in the execution petition, petitioners filed C.R.P.No. 1773 of 1991. While admitting the C.R.P., the proceedings in the execution Petition were suspended by this Court and finally the C.R.P.No. 1773 of 1991 was heard and by orders dated 16-6-1992 it was allowed. Subsequently, the 3rd respondent had withdrawn the Writ Petition. It is the case of the petitioners that, in the meanwhile, the 3rd respondent made constructions in gross violation of the permission and suppressing the previous history of the case, she made an application for regularisation of the constructions made by her, as per G.O.Ms.No. 87 of 1992 and it appears that the regularisation was granted by the Municipal Corporation in Permit No. 405/66 dated 21-11-1992 on the basis of the relaxation granted by the Government in G.O.Ms.No. 87, M.A., dated 12-2-1992. It is the case of the petitioners that the said permission is in gross violation of the orders of this Court passed in C.R.P.No. 1773 of 1991 dated 16-6-1992. That apart, the 3rd respondent has played fraud on the authorities by encroaching extra land over and above the land on which she held ownership rights. Therefore, the petitioners prayed for quashing the order in Permit No. 405/66 dated 21-11-1992. Subsequently, 4th petitioner was impleaded as he was also interested in defending the case of petitioners 1 to 3.
3. Counter affidavit has been filed on behalf of the 3rd respondent. It is stated that the petitioners 1 to 3 are close relations residing near her house and it is only to wreak vengeance, the present Writ Petition has been filed with false allegations. It is the case of the 3rd respondent that she purchased the house for a valid consideration. She obtained permission for construction of the house in Permit No. 61/51 dated 28-11-1984 from the 2nd respondent and constructed ground and first floors. The outer measurements of the said premises as per the plan enclosed to the sale deed and outer measurements of the ground and first floors constructed by her were as per the permission only. There was no encroachment on Western side of Pandarinath Mandir lane. It is the case of the 3rd respondent that the 1st petitioner demanded money for defending himself in the criminal cases filed against him and since she refused to pay the money, they filed the present case. In the year 1992, the Government issued G.O.Ms.No. 87 dated 12-2-1992 permitting regularisation of illegal constructions on payment of compounding fee. In pursuance of the said G.O., an application was made by the 3rd respondent on 1-7-1992 and the same was granted in Permit No. 405/66 dated 21-11-1992. The petitioners also filed O.S.No. 2333 of 1995 on the file of V Assistant Judge, City Civil Court, Hyderabad against the respondents 2 and 3 seeking declaration that Permit No. 405/66 issued by the Municipal Corporation was illegal and void. It is a comprehensive suit. Therefore, for similar relief, the petitioners cannot file a Writ Petition before this Court. The petitioners cannot be permitted to prosecute parallel proceedings, one before the Civil Court and the other before this Court under Article 226 of the Constitution of India. It is also denied by the 3rd respondent that she constructed three floors without any permission. It is her case that she constructed the three floors in accordance with the sanctioned plan issued to her. The 3rd respondent further stated that 2nd and 3rd floors were constructed only after duly submitting the plans and paying the requisite fees to the Corporation and after the expiry of the statutory period for rejection of plans and after issuing notice to the Corporation. She filed O.S.No. 1932 of 1985 against the final notice issued Under Section 636 of the H.M.C. Act, in which, the Civil Court granted status quo orders. It is denied by the 3rd respondent that she encroached 30 Square Yards of land belonging to the M.C.H. and that the petitioners were prevented from going to their respective houses. It is further stated in the counter that G.O.Ms.No. 87 dated 12-2-1992 was issued by the Government to enable the Public to obtain ratification of the illegal constructions. Since the petitioner got the construction regularised as per the orders of the Government, the question of violation of any orders does not arise.
4. An additional counter affidavit was also filed on behalf of the 3rd respondent stating that the 3rd respondent had purchased 118 Square Yards of site with a covered constructed house in the area of 102 square yards. Due to mistake 118 square Yards of site was not mentioned in the sale deed. As regards the construction of 2nd and 3rd floors, the 3rd respondent submits that after the expiry of the statutory period provided for rejection of the plans applied for only she started constructing the house and since the Corporation did not reject the plans within the statutory period she is entitled to construct the house after the statutory period had elapsed. It is her case that she made the constructions within the area owned by her and there was neither any encroachment of municipal land nor the balconies were constructed abutting the public passage. It is also the case of the 3rd respondent that in pursuance of G.O.Ms.No. 243 dated 22-5-1996, she applied for regularisation of 2nd and 3rd floors including the balconies on 17-7-1996 and the said application is still pending. She, therefore, prays that the Writ Petition be dismissed with costs.
5. On the directions of this Court, the Government and the Commissioner of Municipality filed separate counters.
6. In the counter affidavit filed by the Commissioner, it is stated that the 3rd respondent purchased the premises in question admeasuring 102 Square Yards through a registered sale deed dated 10-1-1984. At the time of purchase, there was only a house on the ground floor. Thereafter, the 3rd respondent approached the Government for relaxation of zoning regulations of 1981 and sought permission for construction of ground and first floors. Accordingly, Government issued order in G.O.Rt.No. 1835 M.A., dated 29-11-1986 permitting the 3rd respondent to change the roof in the ground floor and construction of first floor. Based on the said order, the Municipality granted permit in Permit No. 61 /51 dated 29-11-1984. Accordingly, the 3rd respondent had constructed the building. However, after some time, she again started construction of second and third floors unauthorisedly without any permission. Therefore, the Municipality issued notice Under Section 452 and Under Section 636 of the H.M.C. Act in the year 1988. In pursuance of the above notices, the respondent No. 3 filed two suits in O.S.No. 2685 of 1988 and O.S.No. 2750 of 1988 on the file of the II Assistant Judge, City Civil Court, Hyderabad and taking shelter of the pendency of the suits, the 3rd respondent started construction of second and third floors. It is stated by the 2nd respondent that the 3rd respondent is the owner of 102 Square Yards only and that she had encroached 4.5 Square Yards on the lane margin on North Eastern corners of the Ground Floor which is in the line of the existing building line of the 3rd respondent and also neighbour's building line, laid balconies of 3 Ft. wide over an area of 44' x 3'. She has also committed number of violations. The said violations are as under:-
(a) Ground Floor towards North Eastern corner to an extent of 4.5 Sq. Yards which has been shown in the plan enclosed herewith, as against the registered documents for 102 Sq. Yards the construction is actually made in 106.5 Sq. Yards.
(b) Laid balconies on the public passage towards Northern side admeasuring 44'-0 x 3'-0-132 Sq. Ft. (14.7 Sq. Yards) over the 2nd floor and 3rd floor.
(c) Laid balcony on the public road of 18'-0 wide road towards Western side admeasuring 3' x 21' i.e. 63 Sq. Ft. (7 Sq. Yards) on the 2nd and 3rd Floors. Thus the Third respondent has encroached 4.5 Sq. Yards on the ground floor and balconies on Northern side and Western side to an extent of 21.67 Sq. Yards."
C.R.P.NO, 1773 of 1991 filed by the petitioners and Writ Petition No. 10021 of 1991 filed by the 3rd respondent were heard together and the C.R.P. was allowed by this Court on 16-1-1992. In the meanwhile, the Government issued G.O.Ms.No. 87, dated 12-2-1992 for regularisation of unauthorised constructions. In pursuance of the said G.O., the 3rd respondent filed application for regularisation of unauthorised construction and the same was regularised. Regularisation order was issued to the 3rd respondent on the condition that she shall withdraw all Court cases within ten days of issuance of sanction and also remove the encroachments of the balconies laid on the road and the lane margins. Though the 3rd respondent withdrew the suits and Writ Petition No. 10021 of 1987 on 24-11-1992, she did not comply with the other conditions. The regularisation was sanctioned in Permit No.405/66 dated 21-11-1992 by collecting the compound fee as contemplated in G.O.Ms.No. 87 dated 12-2-1992. Since the 3rd respondent has not complied with other conditions of permit dated 21-11-1992, it shall be deemed that the permit has been automatically cancelled.
7. The Government filed counter stating that the relaxation of zoning regulations were made in respect of the 3rd respondent's premises in G.O.Rt.No. 1835, M.A., dated 29-10-1984 to the extent of ground floor and first floor only subject to certain conditions. Since the Municipal Commissioner was competent to issue building permission, it is for the Commissioner to take appropriate action. It is for the Commissioner, Municipal Corporation of Hyderabad to ensure that the construction is in accordance with the sanctioned plan issued by the Corporation.
8. Elaborate arguments were advanced by the learned counsel for the parties. The point that arises for consideration is whether the permission granted by the Municipality in Permit No. 405/66 dated 21-11-1992 in File No. 142/2/21/92/1 to 4 is valid.
9. The admitted facts are that the petitioners 1 to 3 are the residents in the same locality and neighbours of the 3rd respondent. 4th petitioner is not related to the other petitioners. However, he is interested in the prosecution of the case against the 3rd respondent. It is not in dispute that the 3rd respondent purchased the house bearing No. 21-2-142/1 to 4 having a total extent of 102 Square Yards. The Government issued orders of relaxation from zoning regulations to enable the 3rd respondent to construct the ground and first floors in G.O.Rt.No. 1835 dated 29-10-1984. In pursuance of the said G.O., the 2nd respondent Municipal Corporation issued the permit in Permit No. 61/51 dated 28-11-1984 with the following conditions:-
"1. Permission accorded does not bar the application of provisions of Urban Land (Ceiling and Regulation) Act, 1976.
2. Permission is accorded as per plan without any encroachments over Municipal or Government land.
3. As per G.O. (Rt.) No. 1835 M.A., dated 29-10-1984 on conditions that:
I. The party should not project Balcony towards Northern and Western side.
II. The party should not disturb the privacy of the neighbour on opening of ventilation or window and should produce N.O.C. of neighbour. III. The petitioner should not propose further vertical expansion at any time in future as per agreement executed."
From this permission, it is manifest that the 3rd respondent had executed an agreement to the effect that she shall not propose any vertical expansion in future. After obtaining the permission from the Municipality, the 3rd respondent started construction of the premises. However, it is the case of the petitioners that the area falls under commercial zone. To enable the 3rd respondent to construct the first floor, zoning regulations were relaxed and permission was granted, but, according to the petitioners, the 3rd respondent started constructing the commercial complex. Apart from that, the 3rd respondent also raised second floor construction and the 2nd respondent issued notices Under Sections 461,452 and 636 of the Act, against which the 3rd respondent filed O.S.No. 56 of 1985 and obtained status quo orders. This was subsequently numbered as O.S.No. 1932 of 1985 on the file of the II Assistant Judge, City Civil Court, Hyderabad. It appears that the suit was referred to Lok Adalat and it is understood to have been settled and in accordance with the settlement the suit ended in compromise decree dated 24-2-1986. It is necessary to extract the relevant portion of G.O .Rt.No. 1835, Housing, Municipal Administration and Urban Development Department, dated 29-10-1984. It reads:
"Under Regulation 12 of the Zoning Regulations 1981, the Govt. hereby relax the provisions of Regulations 9-2-1, 10 and 6-1-2 of the said regulations to the extent indicated below in favour of Smt. Shakuntala for change of roof of the ground floor and construction of first floor in P.No. 21-2-142/1-4 at Gulzar House.
Z.R. 9-2-1- (i) To the full extent of l0'-00" towards Northern sides for ground and first floor.
(ii) To the full extent of l0'-00" towards Eastern side for ground and first floor.
(iii) To the full extent of 5'-0" towards Southern side.
10. Coverage : To the full extent.
6-1-2: To allow residential building in Commercial use Zone.
2. The relaxation ordered in para (1) above is subject to the following conditions:
(a) The petitioner should not project balconies towards Western and Northern side.
(b) The petitioner should not disturb the privacy of the neighbours on Eastern and Southern sides by way of opening of ventilations or windows and should produce 'No Objection Certificate' from them.
(c) The petitioner should not propose further vertical expansion at any time in future.
3. The Special Officer, Municipal Corporation of Hyderabad is requested to take necessary action accordingly and issue a building permit to the petitioner."
In terms of the settlement, the suit was decreed on 24-2-1986 in the following terms:
"1. That the plaintiffs shall apply to the defendant Municipal Corporation of Hyderabad within three months from the date of decree for regularisation of the suit constructions by levying compounding fee with requisite number of plans showing the un-authorised construction/deviations and thereupon the defendant Municipal Corporation of Hyderabad shall regularise the construction by compounding the offence within three months from the date of submission of plans.
2. That the plaintiff shall pay the compounding fee, permit fee, property tax arrears upto date and also betterment charges, if not already paid, within the time fixed by the Municipal Corporation of Hyderabad. This compounding shall be without prejudice to third party's right including the Municipal properties and the scheme of road widening.
3. That the plaintiff shall not make any further construction in anticipation of compounding without specific permission of the Municipal Corporation of Hyderabad."
It appears that the 3rd respondent contrary to the terms of the decree in O.S.No. 1932 of 1985 started constructing second floor and filed E.P.N0. 57 of 1986 in the suit for regularisation of all unauthorised constructions including the second floor. The learned II Assistant Judge dismissed the said E.P. on 5-10-1987 holding that the 3rd respondent was not entitled for execution of the decree in view of the unauthorised constructions including that of the second floor and conversion of the use of the premises from domestic to commercial, and also on the ground that she had not paid the property tax arrears upto date. However, the 3rd respondent again filed E.P.N0. 3 of 1988 for the execution of the decree dated 24-2-1986 and the same was allowed by the Civil Court on 6-12-1989.
10. At this point of time, petitioners 1 to 3 filed C.R.P.No. 1773 of 1991. It is also the case of the petitioners that after the 3rd respondent filed the suit in O.S.No. 1932 of 1985, 2nd and 3rd petitioners along with one Dr. Lalita Pershad filed O.S.No. 2333 of 1985 before the V Assistant Judge, City Civil Court, Hyderabad alleging that the 3rd respondent was making illegal constructions in a portion of public passage and sought for declaration that the said passage was public road and that the 3rd respondent was not entitled to obstruct the passage. The said suit is still pending. The petitioners herein filed LA.No. 340 of 1985 in O.S.No. 1932 of 1985 to implead themselves as defendants in the suit. However, even while the said I.A. was pending, without any notice to the petitioners in the said I.A., the said suit was referred to Lok Adalat and the same was decreed on 24-2-1986. The petitioners again filed suit in O.S.No. 979 of 1987 on the file of the II Assistant Judge, City Civil Court, Hyderabad against the 3rd respondent and the Commissioner, Municipal Corporation of Hyderabad for declaration that the 3rd respondent herein was not entitled to make construction contrary to G.O.Rt.No. 1835 dated 29-10-1984. The said suit is also still pending.
11. The 2nd respondent issued notice dated 8-7-1988 to the 3rd respondent to stop construction of second floor and another notice dated 14-7-1988 Under Section 636 of the Act for removal of unauthorised constructions. Against the said notice, the 3rd respondent filed suits in O.S.Nos. 2685 of 1988 and 2758 of 1988 on the file of the II Asst. Judge, City Civil Court, Hyderabad and obtained status quo orders. In the C.R.P. filed by the petitioners before this court, it was found that 3rd respondent has not followed the conditions of relaxation. Even after the decree in O.S.No.1932 of 1985, the 3rd respondent proceeded with the construction of the second floor without getting regularisation of ground and first floors and thereupon filed E.P.No. 3 of 1988 for regularisation of second floor also, which was dismissed on 5-10-1987. In the above C.R.P. this Court declared that the order dated 6-12-1989 passed in E.P.No. 3/88 in O.S.No. 1932/85 and the consequential order dated 7-3-1990 passed in E.A.N0. 23/90 in E.P. No. 3/88 of the II Asst. Judge, City Civil Court, Hyderabad regularising the unauthorised construction in respect of the premises is illegal and unjust. This Court further observed "on the facts and circumstances of this case, I am satisfied that the impugned order in E.P.No. 3 of 1988 dated 6-12-1989 is arbitrary and is made in gross abuse of jurisdiction of executing Court and therefore has to be set aside and the consequential order in E.A. No. 23 of 1990 dated 7-3-1990 also has to go." It is thus clear that the 3rd respondent is required to get fresh permission in respect of ground and first floors leave alone the construction in respect of second and third floors, which is wholly illegal and contrary to rules.
12. While the matter stood thus, the Government issued G.O.Ms.No. 87 M.A., dated 12-2-1992 permitting the Municipal Corporation of Hyderabad to regularise certain unauthorised constructions made upto 31-12-1991. Taking advantage of the said Government Order, the 3rd respondent on 21-11-1992 applied to the 2nd respondent for regularisation of unauthorised construction of second and third floors and Permit No. 405/66 dated 21-11-1992 was issued with the conditions as referred to above, and consequent on the said permission, the 3rd respondent had withdrawn all the three suits viz., O.S. No. 2685 of 1988, 2758 of 1988 and 3913 of 1991 and Writ Petition No. 10021 of 1991 and to this effect the 3rd respondent filed a Memo before the 2nd respondent on 27-11-1992.
13. The question that arises for consideration is whether the 3rd respondent is justified in constructing ground and three floors in the premises and whether there is any valid permission in the eye of law.
14. The learned counsel for the 3rd respondent submits that the Writ Petition is not maintainable inasmuch as the petitioners 1 to 3 have already filed civil suit before the civil Court challenging the very same permit granted by the Municipality in Permit No. 405/66 dated 21-11-1992. Therefore, it is not open for the petitioners to again file the Writ Petition and seek the very same relief which is the subject matter of the suit. He relies on number of judgments in support of his contention. On the other hand, the learned counsel for the petitioners submits that it is not only the petitioners 1 to 3 who are championing the cause but also the outsiders were equally interested in protecting the public property. The 3rd respondent cannot afford to encroach on the public property and make constructions in gross violation of the terms and conditions of permit and then again turn round and say that the Writ Petition is not maintainable. The attitude of the 3rd respondent has to be deprecated. It is not in dispute that petitioners 1 to 3 have also filed a suit for similar relief, but the question is whether the 3rd respondent can be allowed to resort to such constructions which are in gross violation of the provisions of H.M.C. Act. It is now settled that the remedy under Article 226 of the Constitution of India is a public law remedy and any person aggrieved by the action of the State or instrumentality of the State can approach the Court for appropriate relief. Moreover, in the instant case, it is a matter of public concern and public interest is of paramount importance, inasmuch as not only the petitioners are aggrieved by the action of the 3rd respondent but also the public are denied the free access in the area on account of encroachment by the 3rd respondent on the public place. It is always open for the petitioners and other affected persons to champion the cause.
15. In Halsbury's Laws of England II Edition, Volume-I, Para 89, it is stated:
"the purpose of an order of Mandamus is to remedy defects of justice; and accordingly it will issue, to the end that justice may be done, in all cases, where there is a specific legal right and no specific legal remedy for enforcing that right; and it may issue in cases where, although there is an alternative legal remedy, that mode of redress is less convenient, beneficial and effectual."
16. In Dwarakanath v. Income Tax Officer, , the Supreme Court had clearly pointed out that Article 226 is designedly couched in a wide language in order not to confine the power conferred by it only to the power to issue prerogative writs as understood in England, such wide language being used to enable the High Courts "to reach injustice wherever it is found" and "to mould the reliefs to meet the peculiar and complicated requirements of this country".
17. To the same effect is the view expressed by the Supreme Court in Hochtief Gammon v. State of Orissa, , wherein it was held that the powers of the Courts in relation to the orders of the Government or an officer of the Government who has been conferred any power under any statute, which apparently confer on them absolute discretionary powers, are not confined to cases, where such power is exercised or refused to be exercised on irrelevant considerations or on erroneous grounds or mala fide and in such a case a party would be entitled to move the High Court for a writ of Mandamus.
18. The Supreme Court in L.I.C. of India v. Consumer Education and Research Centre, (D.N.) observed:
"The arms of the High Court are not shackled with technical rules or procedure. The actions of the State, its instrumentality, any public authority or person whose actions bear insignia of public law element or public character are amenable to judicial review and the validity of such an action would be tested on the anvil of Article 14. While exercising the power under Article 226 the Court would be circumspect to adjudicate the disputes arising out of the contract depending on the facts and circumstances in a given case. The distinction between the public law remedy and private law field cannot be demarcated with precision. Each case has to be examined on its own facts and circumstances to find out the nature of the activity or scope and nature of the controversy. The distinction between public law and private law remedy is now narrowed down. The actions of the appellants bear public character with an imprint of public interest element in their offers regarding terms and conditions mentioned in the appropriate table inviting the public to enter into contract of life insurance. It is not a pure and simple private law dispute without any insignia of public element. Therefore, we have no hesitation to hold that the writ petition is maintainable to test the validity of the conditions laid in Table 58 term policy and the party need not be relegated to a civil action."
Under these circumstances, I have to necessarily hold that de hors the pendency of the civil suit, the Writ Petition is maintainable as the relief claimed is in the interest of the public and community at large.
19. Admittedly, the 3rd respondent has committed number of violations. Even though the suit was filed and decree was obtained through the intervention of Lok Adalat, she did not even comply the conditions mentioned in the decree. There was a clear condition in the decree that the 3rd respondent shall not make any further construction in anticipation of compounding without specific permission of the Municipal Corporation of Hyderabad. But the 3rd respondent giving a complete go-by to the judgment and decree dated 24-2-1986 constructed first (sic. second) floor and subsequently third floor also. Though the Government issued G.O.Ms.No. 87, dated 12-2-1992, it has to be seen whether the conditions have been complied with by the 3rd respondent. Even in the initial exemption granted by the Government, it was made clear that she shall not project balconies towards Western and Northern side and that the 3rd respondent shall not disturb the privacy of the neighbours. The most important condition is that the 3rd respondent should not propose further vertical expansion at any time in future and to this extent, the 3rd respondent has also executed an agreement. When those are the conditions and when those conditions have not been fulfilled, the 3rd respondent is not entitled to seek any sanction from the Municipality. Having committed before the Municipality that she shall not propose further vertical expansion, it is most unreasonable on her part to construct second and third floors and then make an application to the authorities for grant of permission and having waited for the expiry of statutory period to commence the construction is highly objectionable. Further grave irregularity that was committed by the 3rd respondent is that taking advantage of G.O.Ms.No. 87 she filed an application for regularisation of unauthorised constructions. The Municipal Corporation of Hyderabad did not obviously bother to correlate the permit sanctioned earlier and regularised the constructions in a rather routine way. Had the Municipality perused the earlier sanction, they could have realised that second and third floor construction is not permissible as the 3rd respondent herself gave an agreement that she shall not propose second and third floors in future. To set at naught all these irregularities, the 3rd respondent had withdrawn the civil proceedings pending before the various Courts including the Writ Petition before this Court on the sanction having been granted on 21-11-1992 but yet the question remains whether the entire construction is in accordance with law. There are no disputed facts in the instant case. The 3rd respondent has admittedly purchased the premises having 102 Square Yards and she is bound to make construction only within the said area in accordance with the rules and the sanction granted by the Municipal Corporation of Hyderabad. Even according to the counter of the 2nd respondent Commissioner, it is now made clear that even the ground and first floors of the house have not been regularised as the conditions mentioned in the G.O. issued by the Government relaxing the zoning regulations have not been fulfilled. When such is the situation, the regularisation of 2nd and 3rd floors cannot be said to be valid. As already observed by me the Corporation has not acted diligently. Regularisation of irregular constructions cannot be extended to encroachment either in Government land or others' land. One cannot encroach another's land and construct as he wishes and make application for regularisation under CO.Ms.No. 87. It can only be done within the permissible limits of law. Under these circumstances, it has to be necessarily held that the entire construction is without any valid permission as on date. The Commissioner of Municipality has categorically stated that there is an encroachment on the public road and that the balconies and other constructions were made in gross violations of the sanction issued by the authorities in Permit No. 61/51 dated 28-11-1984. Accordingly, the latter Permit No. 405/66 dated 21-11-1992 is declared as illegal and invalid.
20. The ground reality as on today is that the 3rd respondent has constructed the entire premises with ground plus three floors and admittedly the entire construction is not backed by any valid permission. Even the very vertical construction of second and third floors is contrary to the commitment given by the 3rd respondent herself. Be that as it may since the constructions have already come up the only course left is to how best the construction should be regularised. The 3rd respondent who has taken the law in her hands cannot invoke the sympathy from this Court, more especially when she had constructed the second and third floors knowing fully well that she is not. entitled to in the wake of her commitment. The public passage existing on the premises is also a narrow passage and the 3rd respondent has again encroached the passage and constructed the house, number of balconies and projections are constructed and thereby encroaching on the right of privacy of the neighbours. The construction of the building illegally and contrary to the law and the conditions imposed by the authorities pose serious threat to the neighbours' right and also a threat to public health. The transgression of building laws by the persons is an act of aggression on the rights of society.! The Government was cautious enough in granting relaxation in 1984 itself by stating that the 3rd respondent shall not propose any vertical construction in future, but yet the 3rd respondent in gross violation of the said permit started construction. Though it is the case of the 3rd respondent that she has constructed on 102 Square Yards, it is now confirmed that the 3rd respondent has constructed on more than 102 Square Yards by encroaching either the Government land or others' land. It would not be open for the 3rd respondent to contend that even if she had encroached others' land, so long as there is no objection from them, it would not be open for this Court to hold that the 3rd respondent is an encroacher. This contention cannot be accepted inasmuch as the 3rd respondent is bound to confine the constructions within the area of 102 square yards only. Simply because the neighbour for various reasons may not be staying in that place and the place was kept vacant, it does not mean that she can take undue advantage of the absence of the neighbour and make constructions as she likes. When the permission was specifically granted for construction over 102 Square Yards, it must be constructed only on that land and it cannot be extended to any other place, either on the public place or on the place of others. Any departure from the permit sanctioned by the Municipality should be treated as having deleterious effect on the health and well-being of not only the neighbours but also the public who have a right to use the lane. The tendency of raising unlawful constructions and unauthorised constructions/encroachments in the twin cities are required to be dealt with by firm hands and such unlawful constructions are against public interest and hazardous to the safety of occupiers and residents of neighbouring houses.
21. In view of the foregoing discussion, it is now clear that the entire matter has to be re-examined by the Municipal Corporation afresh. In the normal course this Court could have ordered the demolition of unauthorised structures, but in view of the fact that already constructions were raised long back, a lenient view is taken. At any rate, it must be ensured that the construction already made should conform to the standards prescribed under the zoning regulations, excepting to the extent of relaxation granted by the Government.
22. Under these circumstances, while quashing the impugned permit, the following directions are issued:
(1) the 2nd respondent Municipal Corporation shall inspect the constructions made by the 3rd respondent afresh within a period of three months from the date of receipt of this order and identify the illegal constructions and encroachments in respect of ground and 1st to 3rd floors made by the 3rd respondent which are not in conformity with the statutory rules;
(2) The Municipality shall issue notice to the 3rd respondent calling upon her to rectify the illegal constructions so identified within a period of six months from the date of service of notice. If the defects are not rectified within the period stipulated above, it is open for the Municipal Corporation to demolish the illegal structures, it shall be made clear that the 3rd respondent is permitted to construct only on an area of 102 Square Yards and that too for residential purposes only;
(3) The 3rd respondent shall pay the fee to the 2nd respondent Municipal Corporation treating it as a fresh sanction for ground and three floors without making any adjustments of the fee already paid on the earlier two occasions; and (4) The 3rd respondent shall also pay costs of Rs. 4,000/- to the petitioners.
23. The Writ Petition is accordingly disposed of.