Telangana High Court
Mir Mohammed Ali Khan vs Greater Hyderabad Municipal ... on 21 April, 2022
Author: P. Madhavi Devi
Bench: P. Madhavi Devi
THE HONOURABLE SMT. JUSTICE P. MADHAVI DEVI
WRIT PETITION NO.16769 OF 2021
ORDER
This Writ Petition has been filed seeking a Writ of Mandamus declaring the notice bearing No.313-316/9/5/TPS/C-14/KZ/GHMC/ 2021 dt.19.07.2021 and the preceding notices thereon issued by respondents 1 and 2 as illegal and arbitrary and declaring the action of respondents 1 and 2 in taking the land admeasuring 90.5 square metres on the Southern and Western sides of the premises No.5-9-313 to 316 at Gunfoundry, Abids, Hyderabad for the purpose of road widening as a condition precedent for issuing permit and sanction to the petitioner without paying appropriate compensation for the same, i.e., appropriate TDR/exemptions in the matter of constructions/floor area as illegal and arbitrary and consequently to direct the official respondents either to handover back the said land or to pay compensation in accordance with law and pass such other order or orders as this Hon'ble Court may deem fit and proper in the circumstances of the case.
W.P.No.16769 of 20212
2. Brief facts leading to the filing of this Writ Petition are that the petitioner and his family members are owners of the property bearing No.5-9-313 to 316 situated at Gunfoundry, Abids Road, Hyderabad with land admeasuring 2400 square yards. The petitioner and his family members intended to construct a new building in the said premises and therefore the petitioner applied for sanction for construction of a building thereon and the same was granted by respondent No.1 on 23.05.2005 for construction of commercial building, i.e., ground + 5 upper floors. Accordingly, the petitioner started construction of the building and he submits that due to lack of funds, he was not in a position to complete the same and therefore he sought for extension of time and accordingly 10 months time is granted by respondent No.1.
3. It is submitted that the petitioner has completed the building within the extended time in accordance with the sanctioned plan and has given certain premises on lease. One of the tenants by name Sabina Shazan running a business under the name and style of 'Shazan Ethnic Wear' has defaulted in payment of rents and when he demanded for payment of arrears of rent or to vacate the premises, the tenant was demanding huge amount and started inimical terms with him and W.P.No.16769 of 2021 3 approached the GHMC officials and got issued a notice under Section 636 of the HMC Act by giving complaint through one Mrs. Zeenath Summaiyya who is not a resident of the local area.
4. It is submitted that on receipt of the above complaint, respondent No.2 has issued a notice to the petitioner under Sections 452(1) and 461(1) of the HMC Act dt.26.06.2021 and also issued a notice under Section 452(2) of the HMC Act 05.07.2021 to which the petitioner has given his reply on 07.07.2021. In order to prevent the interference by respondent No.2, the petitioner has filed a suit in O.S.No.2685 of 2021 on the file of the IV Junior Civil Judge, City Civil Court, Hyderabad and I.A.No.229 of 2021 was filed seeking suspension of the operation of the notice dt.05.07.2021. It is submitted that upon issuance of a notice by the Hon'ble Court, respondent No.2 filed counter and hurriedly issued notice for demolition under Section 636 of the HMC Act dt.19.07.2021. It is submitted that the deviations alleged by the respondents do not affect the rights of any of the neighbours or others and will not cause any hindrance or cause any obstruction for the passersby.
5. It is admitted by the learned counsel for the petitioner that there is some deviation in the front side which, according to the petitioner, is W.P.No.16769 of 2021 4 only minimal. He further submits that respondents 1 and 2 have acquired certain portion of the petitioner's land for road widening and are required to follow the provisions relating to acquisition under the Land Acquisition Act or under the GHMC Act, but the respondents insisted as a condition precedent for sanction of building permission that the petitioner should give his land free of cost. It is submitted that having no other alternative, the petitioner acceded to their pressures and that the respondents 1 and 2 they have not given any proportionate TDR or extra construction permission to the petitioner. It is submitted that in this regard, the whole approach of the official respondents is incorrect. As far as the rear portion is concerned, it is submitted that there is only a shed beyond the constructed area and the measurements are taken by the respondents over the tin roof which is a temporary structure resulting in deviation. It is submitted that the shortfall pointed out by the respondents 1 and 2 on the Eastern and Western sides is only trivial and that while taking measurements, they have measured from chajja point and also taken the temporary structures into account and therefore the deviation is trivial. It is further submitted that the land on the Southern side and Western side was taken by the respondents 1 and 2 free of cost without any compensation. It is also submitted that the measurements W.P.No.16769 of 2021 5 allegedly taken by the official respondents are in the absence of the petitioner and that on being pointed out the deviations, the petitioner has requested the respondents for re-inspection. It is submitted that though the petitioner has obtained permission for ground + 5 upper floors, he has constructed ground + 3 upper floors only and constructed additional cellars only to keep or store the construction material and that he will close the cellars once the finishing is completed.
6. The learned counsel for the petitioner further submitted that the notices issued under Sections 452(2), 461(2) and 636 of the GHMC Act are bad in law as the alleged measurements were taken in the absence of the petitioner and further that the proceedings initiated are barred by limitation as the construction is not a new construction. It is submitted that the permission for construction was obtained on 23.05.2005 and the construction was completed by 2009, whereas the notices have been given in the year 2021, i.e., after a decade.
7. It is further submitted that under Section 452-A of GHMC Act, the respondents can regularise the violations, if any, and therefore the petitioner had requested them to re-inspect the premises in his presence and take measurements accordingly. It is also submitted that the W.P.No.16769 of 2021 6 petitioner has already made an application for regularisation of the minor deviations by submitting an application on 13.09.2021 in terms of Section 455-A of the GHMC Act and that as per the present norms, ground + 2 cellars are permitted and even the setbacks are now in accordance with the latest regulations and if latest regulations are taken into account, there is no deviation.
8. Sri J. Prabhakar, learned Senior Counsel representing Sri Aziz Hussain, learned counsel for the petitioner while arguing as above has drawn the attention of this Court to the notice under Section 636 of the HMC Act dt.19.07.2021, wherein the deviations in the construction are pointed out. He has also drawn the attention o this Court to the notice under Section 452 of HMC Act dt.05.07.2021 pointing out the shortfalls in the constructed area. He has drawn the attention of this Court also to the reply of the petitioner dt.07.07.2021, wherein the petitioner has requested the respondents to re-inspect the premises in their presence for knowing true facts.
9. Vide orders dt.22.07.2021, interim direction was granted by this Court directing the official respondents not to take any coercive steps against the petitioner and also directing the petitioner not to undertake W.P.No.16769 of 2021 7 any further construction. The said interim order has been extended from time to time.
10. Respondents 1 and 2 filed their counter affidavit denying the allegations made by the petitioner in the writ affidavit. It is submitted that the officials of the respondent Corporation have inspected the subject site and on inspection, they found that the petitioner and other owners have constructed 3 cellars instead of one permitted cellar unauthorisedly without constructing retaining walls and also constructed compound wall in road affected area and made deviations to the sanctioned plan by not leaving the setbacks as per the sanctioned plan. It is submitted that respondent No.3 had filed a complaint against the construction made by the petitioner and while acting on the said complaint only, the above deviations were found and accordingly notices were issued to the petitioner. It is submitted that in spite of a direction to construct retaining wall in the cellar, the petitioner had not complied with the same and it was only thereafter that the petitioner had constructed the retaining wall but has not closed the unauthorised cellars.
W.P.No.16769 of 20218
11. As regards the petitioner's claim that no compensation was paid while acquiring the land for road widening, it is stated that the petitioner out of his own free will had surrendered the land for road widening at the time of obtaining building permission and therefore it cannot be said that the land has been acquired by violating any norms. The official respondents submitted that there are no interim orders granted by the Civil Court and the respondents have already filed counter and are pursuing the suit. It is also alleged that in spite of the directions of this Court to the petitioner not to make any further construction, the petitioner is carrying on construction activity and when questioned, the petitioner has stated that he is levelling floors in parking area as he is getting complaints from public in the locality in this regard. It is submitted that respondents 1 and 2 have strictly followed the due process of law and are taking action in accordance with the provisions of the GHMC Act.
12. The learned Standing Counsel for respondents 1 and 2, Sri N. Ashok Kumar, submitted oral arguments in support of the counter filed. W.P.No.16769 of 2021 9
13. Learned Senior Counsel representing the petitioner has also drawn the attention of this Court to the sanctioned plan to demonstrate that the land of the petitioner had to be surrendered at the time of road widening and that he has not received any compensation or TDR rights for such surrender of the land. He has also placed reliance upon various decisions for the proposition that compensation has to be paid for the land acquired for road widening. He has also relied upon the judgment of Hon'ble High Court of A.P. in the case of I. Venkat Rao Vs. Municipal Corporation of Warangal and another1 as regards the locus standi of respondent No.3 in making complaint against the petitioner.
14. Having regard to the rival contentions and the material on record, it is noticed that the petitioner has made specific allegation in the writ affidavit that no notice has been given to him before the respondents taking measurements of the building. There is no denial or whisper about the same in the counter affidavit filed by the official respondents about the non-issuance of the notice to the petitioner. 1 2000 (2) ALD 411 W.P.No.16769 of 2021 10
15. The official respondents have however filed additional counter affidavit on 18.11.2021 stating that in spite of direction of this Court, the petitioner has undertaken construction activity and that the official respondents also lodged a complaint with the police in Abids Police Station and that there is violation of the interim directions of this Court by the petitioner after filing of the counter affidavit.
16. Even in this additional counter affidavit also, there is no mention about the presence of the petitioner at the time of inspection of the site and at the time of taking measurements of the building by the authorities of respondents 1 and 2. This is apparently in violation of principles of natural justice. When the respondents 1 and 2 received a complaint from respondent No.3, the respondents ought to have given a show-cause notice to the petitioner and inspected the site for taking measurements in his presence and thereafter taken action in accordance with law if deviations were found. The petitioner has admitted certain deviations in the constructed building and according to him, he has already filed an application for regularisation of those deviations under Section 455-A of the GHMC Act. The respondents have also not made any comment with regard to the application of the petitioner under Section 455-A of the W.P.No.16769 of 2021 11 GHMC Act for regularisation of unauthorised construction/deviations. On filing of the application under Section 455-A of the GHMC Act, the official respondents are required to inspect the premises and examine as to whether the deviations committed by the petitioner can be regularised or not.
17. In view thereof, since the inspection was not made in the presence of the petitioner, the official respondents are directed to inspect the premises and take measurements thereof in the presence of the petitioner/owners of the property and thereafter issue notice to the petitioner with regard to the deviations, and if respondents 1 and 2 are not in favour of regularisation of such deviations, they shall take action strictly in accordance with law.
18. With the above directions, the Writ Petition is disposed of. No order as to costs.
19. Pending miscellaneous petitions, if any, in this Writ Petition shall stand closed.
___________________________ JUSTICE P. MADHAVI DEVI Date: 21.04.2022 Svv