Telangana High Court
M/S. Shafali Infratech Llp vs Greater Hyderabad Municipal ... on 25 November, 2022
Author: Lalitha Kanneganti
Bench: Lalitha Kanneganti
THE HON'BLE SMT. JUSTICE LALITHA KANNEGANTI
WRIT PETITION No.26229 of 2021
O R D E R:
This writ petition is filed with the following prayer;
"issue a Writ, Order or Direction, or more particularly in the nature of Writ of Mandamus;
(a) Declaring the Notice No.236/ACP/TPS/C19/W96/2022 dated 14-06-2022 issued by Respondent No.2, the Deputy Commissioner of Greater Hyderabad Municipal Corporation (GHMC), as null and void for it being patently illegal, unilateral and arbitrary in concluding the inquiry initiated vide its Notice dated 30.03.2022 without understanding the ratio decidendi in the Order dated 01-04-2022 passed by this Honble Court while disposing W.P.No.15990 of 2022 filed by Respondent No. 3.
(b) Declaring the Order passed by the 1st Respondent-
Deputy Commissioner GHMC, as a clear violation and abuse of the principles of natural justice embedded in Audi Alteram Partem and for having passed the Order dated 14-06- 2022 without considering the representations of the Petitioner on 25-04-2022 and 06-06-2022 and further a Representation on 07-06-2022 by Respondent No 4 to Respondent No. 2- the Asst City Planner".
2. Learned counsel for the petitioner Mr. P. Prem Kumar submits that the petitioner is a builder/developer at Hyderabad, who had successfully completed several projects and residential apartments in accordance with the provisions of the GHMC Act, 1955. He submits that the petitioner has approached respondent No.1 by way of an application dated 10-07-2014 for construction of residential apartments block of 63 units of flats on a residential plot of land admeasuring 5,403.90 sq. yards, situated at Yousufguda, Khairatabad at Hyderabad.
2 LK, J W.P.No.26229 of 2022 He submits that initially, permission was approved for construction of 63 apartments vide permit dated 02-05-2016 based on the plan submitted by the petitioner on 10-07-2014. He submits that subsequently, in view of the extent of land available for construction, the petitioner has submitted a revised plan for construction of 65 apartments vide its application dated 14-02-2017 and after scrutiny, respondent No.1 has approved the same on 21-02-2018 and the revised plan dated 14-02-2017 was for the conversion of amenities block into residential flats in view of the residual undivided share of land in favour of the developer in view of the available extent of land for development. He submits that respondent No.1 has granted conversion of amenities, such as, gymnasium and the community hall, originally planned in ground floor and the 1st floor with one additional apartment in each of those floors and enhanced the permit to 65 total apartments. Learned counsel submits that on completion of the residential complex, it was named as 'Blue Bird Habitat', and thereafter, as the construction was in accordance with the permission, "Occupancy Certificate" was issued on 19-01-2019 in favour of the petitioner. He submits that respondent No.3, who was one of the first few members, had purchased apartment No.501 in the fifth floor by way of a sale deed dated 11-12-2017 in favour of his wife and he was also the President of the Blue Bird Habitat Association and he is aware of the revised building permit dated 21-02-2018 and the relocation of the amenities from the ground and first floor to the 5th floor terrace under the 3 LK, J W.P.No.26229 of 2022 overhead water tank. He submits that in view of the authoritarian conduct and rude behaviour of respondent No.3, he was removed as President of respondent No.4 Association and there were several differences between respondent No.3 and the rest of the residents of the Association and in view of this brewing differences, respondent No.3, by way of a representation dated 24-03-2022 has approached respondent No.1-Deputy Commissioner, GHMC, with frivolous allegations. He submits that when the said representation is not considered by the respondent Corporation, respondent No.3 has filed W.P.No.15990 of 2022 and the same was disposed of directing the respondents to consider the representation of the petitioner therein dated 24-03-2022 and to take steps in accordance with law. Learned counsel submits that though the petitioner and its Directors were made as party respondent Nos.9 to 11 in W.P.No.15990 of 2022, no notice or opportunity was given to counter the allegations of respondent No.3 i.e., 1st petitioner in W.P.No.15990 of 2022, and thereafter, a show cause notice was issued to the petitioner on 23-05-2022 and then the petitioner came to know about the writ petition field. Learned counsel for the petitioner submits that as per the show cause notice dated 30-03-2022, the petitioner was requested to submit the ownership and link documents and building sanctioned plan etc., in connection with "Blue Bird Habitat" and the petitioner has submitted the relevant documents along with a detailed reply on 25-04-2022 and respondent No.2 has issued another show cause notice on 4 LK, J W.P.No.26229 of 2022 23-05-2022, and the petitioner also gave a reply on 06-06-2022 along with a copy of its response dated 25-04-2022 given to respondent No.1. He submits that the respondent Corporation, without considering the petitioner's explanation given to them, has issued the impugned proceedings dated 14-06-2022 and threatening the petitioner with coercive steps. He submits that in the said order, there is no indication as to why the response of the petitioner was not considered, neither an opportunity was given to the petitioner for his personal hearing. He submits that respondent No.1 has totally ignored its own building permit order dated 21-02-2018 and passed the impugned order dated 14-06-2022 arbitrarily. Learned counsel submits that respondent No.3 has misconceived the order dated 01-04-2022 passed by this Court in W.P.No.15990 of 2022 which was not on merits nor was determination of the facts rendered therein and it was only to consider the representation dated 24-03-2022 of the petitioner. Learned counsel submits that without giving an opportunity to the petitioner, the order impugned has been passed by the respondent Corporation. He submits that the order impugned passed by the respondent Corporation is highly arbitrary, illegal and contrary to the principles of natural justice.
3. When the matter came up for admission, this Court has passed an interim order dated 20-06-2022, whereby it was observed that it is made clear that the petitioner shall not run the zym or function 5 LK, J W.P.No.26229 of 2022 hall/community hall for commercial purpose and use for residential purpose only.
4. Respondent Nos.1 and 2 have filed counter-affidavit stating that the respondent Corporation has received a complaint that the petitioner has constructed a gym and multipurpose function hall on the terrace without taking permission. It is stated that the petitioner had obtained permission in the year 2014 for construction of ground + five upper floors. It is stated that the residents of 5th floor are facing lot of inconvenience and disturbance due to functioning of illegal and unauthorized construction of gym and multipurpose function hall and the respondent Corporation has issued notices dated 14-06-2022 and 04-06-2022 to the petitioner calling for explanation and thereupon a notice under Section 636 of GHMC Act was also issued. According to the respondent Corporation, the petitioner has made illegal constructions without permission. It is stated that the petitioner has submitted a reply without showing the permission for running gym and function hall and on the other hand, the main allegation of the residents is that conducting functions in late night and operating the sound system are creating lot of nuisance and inconvenience and hundred people are moving to attend the function on the terrace and also disturbing the sleep and peace of mind and as such, there is no illegality or irregularity in issuing the notice and calling for the explanation and also issuing further notice for demolition by following 6 LK, J W.P.No.26229 of 2022 due process of law. It is stated the petitioner has no construction permission for running gym and function hall.
5. The unofficial respondent No.3 has filed counter affidavit stating that in the revised plan dated 14-02-2017 and the permission dated 21-02-2018, the amenities i.e., Multipurpose Hall and gym, are not mentioned anywhere, except for swimming pool, which was built on the BBH Terrace. It is stated that at the time of conversion of amenities, multipurpose hall and gym into residential flats, the builder gave an undertaking to GHMC on 19-12-2017 that he did not sell any flats or enter into any sale agreements with any third party and based on the said undertaking, the GHMC gave a permit and revised the permit No.53440/HO/CZ/CIV-10/2016, but the builder has cheated the GHMC by giving false undertaking as he sold Flat Nos.303, 309, 401 in the year 2017 and also entered into a sale agreement and also registered Flat Nos.501, 502, 209 and 207 and after obtaining the occupancy certificate, the builder has constructed the amenities i.e., multipurpose hall and gym, illegally on the Blue Bird Habitat Apartment Terrace. It is stated that at the time of agreement or registration, the builder has collected an amount of Rs.4,00,000/- each from all the purchasers for the amenities i.e., Multipurpose hall and gym and other. Respondent No.3 has admitted that because of his attitude, he has been removed from the post of President. It is stated that the petitioner is colluding with some of the residents of the apartment. It is stated that 7 LK, J W.P.No.26229 of 2022 there is no resolution given by the General Body for the approval of illegal structures erected by the builder. It is stated that there is fire safety measures on the terrace. It is stated that as the structure is illegal, the respondents have issued the notice and there is absolutely no illegality in the impugned notice.
6. The undisputed facts in this case are that the whole process is initiated basing on the complaint given by the unofficial respondent No.3 stating that after obtaining the revised permission, the petitioner has constructed the gym and the function hall on the terrace without obtaining any permission from the respondent Corporation and permitted the residents of the apartment for parties/functions and even permitted for consumption of alcohol and they are also cooking on the terrace endangering the lives of the inmates of the apartment flat owners and as the unofficial respondent No.3 is residing in the 5th floor, he is facing lot of nuisance and inconvenience. Initially, a notice was issued on 30-03-2022, wherein the petitioner was asked to submit the copies of the documents i.e., ownership and link documents, building sanctioned/regularization plan/BRS of premises within 3 days from the date of receipt of the notice. For that, the petitioner has submitted a reply stating about the enquiry and issuance of the occupancy certificate and also the revised plan without stating anything with regard to the allegations levelled in the complaint with regard to making unauthorized constructions after the occupancy certificate. The 8 LK, J W.P.No.26229 of 2022 petitioner has only stated that he had disputes with another members, who have come up with the present complaint, and thereafter, another reply was given on 25-04-2022, wherein the petitioner has only stated that they have obtained all the statutory approvals and they are submitting all the relevant documents and stated that they are willing to cooperate with any such enquiry to be conducted with regard to the statutory approvals, sanctions etc., relating to the "Blue Bird Habitat"
residential complex. Thereafter, a notice was issued on 23-05-2022, wherein the respondent Corporation has specifically mentioned that there is an existing unauthorized construction of function hall and gym above the 5th floor contrary to the provisions of the GHMC Act and hence, they have directed to show sufficient cause by a statement in writing or by an agent duly authorized by him as to why the existing unauthorized construction of function hall and gym above the 5th floor shall not be removed or pull down and directed the petitioner to submit a reply within 7 days from the date of receipt of the said notice, failing which further action will be taken to remove or pull down the existing unauthorized construction of function hall and gym. Thereafter, another notice was given on 04-06-2022 asking the petitioner to submit his explanation within three days and thereafter, on 06-06-2022, the petitioner has submitted his explanation to the said show cause notice and without giving any reasonable explanation, he has just mentioned about the enclosure of a copy of the reply dated 25-04-2022 to the Deputy Commissioner vide his inquiry dated 30-03-2022 on the very
9 LK, J W.P.No.26229 of 2022 same subject matter and treated it as reply in response to the notice dated 23-05-2022. Thereafter, another reply was given on 07-06-2022, wherein it is stated that the GHMC has inspected the premises and issued the revised building permission on 21-02-2018 and approved the plan for the construction of 65 flats where the additional apartments were to be built in the place of the gym and the community hall in the 2nd floor of the apartment complex and in this context, the function hall and the gym were shifted to the terrace underneath the overhead water tanks by merely constructing the walls and not by laying any concrete roof, moreover it was not in contravention of the approved plan and hence, there is no violation. Thereafter, the petitioner has stated several things about the unofficial respondent No.3 and his behaviour and the manner in which he is behaving with the other persons and requested the respondent Corporation to stop further proceedings. Thereafter, the respondents have passed an order under Section 636 of GHMC Act stating that they have issued a show cause notice under Sections 452(1) and 461(1) and also a notice under Section 452(2) of GHMC Act to show cause why the existing unauthorized construction of function hall and gym above the 5th floor should not be removed or pull down and directed the respondent Corporation to remove the said construction. The petitioner along with the writ petition has also filed the permissions that were obtained i.e., initially on 02-05-2016, as per which, permission was granted for construction of ground + 5 floors, where sub-cellar, cellar for parking, partly ground and first floor for 10 LK, J W.P.No.26229 of 2022 residential flats and partly for amenities + 2nd to 5th floor for residential flats. Thereafter, the revised plan was issued on 21-02-2018, for conversion of amenities block into residential flats consisting of ground + 1st floor with one flat in each floor for residential building consisting of 2 cellars for parking, ground + 5 upper floors. Though several notices were given, the petitioner has submitted several replies to the respondent Corporation. But in any of the replies submitted to the respondent Corporation, the petitioner has not stated about the permission that is obtained by him for construction of the gym and the function hall on the terrace of the building and he is only mentioned about the revised plan, wherein he was permitted to covert some amenities into flats. Even in the last reply that was given by the petitioner, he has categorically stated that as the 2nd floor was converted into the residential flat, they have shifted the amenities to the terrace and accordingly, it is not an illegal construction. On the face of it, the petitioner, without taking any permission, has constructed the gym and the function hall on the terrace, which is an illegal construction and causing much inconvenience to the persons who are occupying the 5th floor. Hence, there is no illegality in the impugned notice dated 14-06-2022 seeking interference of this Court.
7. Accordingly, the Writ Petition is dismissed. No order as to costs.
11 LK, J W.P.No.26229 of 2022
8. Miscellaneous Applications, if any pending in this writ petition shall stand closed.
______________________ LALITHA KANNEGANTI, J 25th November, 2022 sj