Telangana High Court
Mirchumal Chellaram Manghnani vs M. Ratna Reddy And Another on 4 September, 2023
Author: K. Lakshman
Bench: K. Lakshman
HON'BLE SRI JUSTICE K. LAKSHMAN
CONTEMPT CASE No.1382 OF 2021
ORDER:
This Contempt Case is filed complaining willful and deliberate disobedience of the order dated 27.10.2021 passed by this Court in W.P. No.13491 of 2021 by the respondents herein.
2. Heard Mr.B.Mayur Reddy, learned Senior Counsel representing Sri K.V.Raman, learned counsel for the petitioner herein (hereinafter called contempt petitioner) and Sri A. Kranthi Kumar Reddy, learned counsel appearing for 1st respondent (hereinafter called 'writ petitioner') and Sri G.Malla Reddy, learned standing counsel appearing for 2nd respondent.
3. Vishwa Bharathi Educational Society represented by its President Mr. M.Ratna Reddy (hereinafter referred to as writ petitioner), filed a writ petition vide W.P.No.13491 of 2021 to declare the action of 2nd respondent/Narsingi Municipality, Ranga Reddy District, in issuing notice dated 27.05.2021 as illegal. This Court vide order dated 17.06.2021 directed respondents therein not to take any coercive steps with regard to the subject property. The said writ petition came up for hearing on 06.09.2021 and this Court, recording 2 KL,J C.C. No.1382 of 2021 the undertaking given by Sri A.Kranti Kumar Reddy, learned counsel for the writ petitioner that the writ petitioner will not make any construction in the subject property, extended the interim order till 15.09.2021. Thereafter, the said interim order was extended from time to time. The said writ petition was dismissed on 27.10.2021 by vacating the order dated 17.06.2021.
4. In the writ affidavit, it is the contention of the writ petitioner that it has obtained land admeasuring Ac.2-00 guntas situated in Sy.Nos. 488, 489 and 490 of Manchirevula Village, Narsingi Municipality-ORRGC Mandal (erstwhile Gandipet Mandal) Ranga Reddy District, by way of entering into lease deed bearing Doc.No.8164 of 2019 dated 03.07.2019. It had submitted an application dated 13.01.2020 along with all necessary documents to HMDA seeking permission to construct building over the leased land in order to run Educational Institutions. During the pendency of the said application, Government has imposed complete Lockdown due to Pandemic situation. After relaxing Lockdown, HMDA addressed a letter to the writ petitioner dated 09.09.2020 requesting the writ petitioner to pay necessary development fee and other charges amounting to Rs.47,58,179/-, to process the application of the writ 3 KL,J C.C. No.1382 of 2021 petitioner and the writ petitioner paid the said amount. The writ petitioner had executed a simple mortgage deed dated 20.11.2020 in favour of HMDA by mortgaging 5% of the total built up area. Thus, according to the writ petitioner, except release of permission everything was concluded. Therefore, petitioner has addressed a letter dated 20.04.2021 to the HMDA requesting it to release permission plan. Since the same is getting delayed, the writ petitioner has started construction strictly in accordance with the plan submitted for approval before the HMDA. The writ petitioner found a notice dated 27.05.2021 issued by HMDA, wherein, it is also mentioned about the receipt of notice dated 18.05.2021 earlier. Therefore, according to the writ petitioner, the said notice dated 27.05.2021 is illegal. Thus, the petitioner before release of permission from HMDA, started construction basing on the deemed permission.
5. Section 20(3) of the Hyderabad Metropolitan Development Authority Act, 2008 (for short, the HMDA Act') mandates that the writ petitioner has to submit an intimation to the Metropolitan Commissioner informing about commencing work. This Court considering the rival submissions and also the aforesaid provision, gave a finding that the writ petitioner failed to file any document to 4 KL,J C.C. No.1382 of 2021 show that it has intimated to HMDA about commencement of work about deemed provision. This Court also gave a finding that HMDA has already rejected the permission to the writ petitioner vide proceedings dated 27.05.2021. Therefore, the writ petitioner cannot say that it has availed deemed clause under Section 20(3) of HMDA Act. The writ petitioner cannot blow hot and cold together. If the writ petitioner aggrieved by the same, it has to challenge the same by way of filing an appropriate application. Impugned proceedings dated 27.05.2021 are only consequential proceedings to the proceedings dated 21.05.2021. Vide proceedings dated 27.05.2021, Narsingi Municipality requested the petitioner to stop work on the ground that it is an unauthorized construction. Writ petitioner submitted an explanation to the notice dated 27.05.2021 on 10.06.2021. The same is pending with Narsingi Municipality for construction and Narsingi Municipality has to consider the same and pass appropriate orders. This Court also held that the writ petitioner failed to establish any ground to interfere with the impugned notice dated 27.05.2021 and that the writ petitioner has commenced construction in violation of the procedure laid down under HMDA Act. Writ petitioner has informed this Court, also Narsingi Municipality and 3rd respondent that it has 5 KL,J C.C. No.1382 of 2021 already stopped the work. With the said findings, this Court dismissed the writ petition granting liberty to the writ petitioner to challenge rejection order dated 21.05.2021 issued by HMDA. This Court vacated interim order dated 17.06.2021.
6. It is the specific contention of the petitioner herein that the writ petitioner in violation of the undertaking given to this Court raised construction by laying Slab of Ground, First Floor and completed Slab of Second Floor. It is in the process of laying Slab of Third Floor. The same is in violation of the undertaking given by the writ petitioner that it will not make any construction in the subject property. Thus, 1st respondent, President of writ petitioner Society committed willful and deliberate violation of orders granted by this Court and also undertaking given by the writ petitioner. 2nd respondent/Commissioner of Narsingi Municipality violated the aforesaid order in not demolishing entire construction (Unauthorized construction made by writ petitioner) and demolished only part of it.
7. 1st respondent filed counter and additional counter affidavit contending that writ petitioner has completed construction as on the date of reserving the matter for orders in the writ petition by this Court. The writ petitioner had completed Ground, First Floor and 6 KL,J C.C. No.1382 of 2021 Second Floor and half of Third Floor and it is at the same stage when the writ petitioner had given undertaking to this Court on 06.09.2021. Thus, the writ petitioner could not complete construction on Third Floor. It is further contended that after dismissal of W.P.No.13491 of 2021, the writ petitioner approached HMDA for permission by furnishing the additional proofs before it to prove the fact that the land in question is not evacuee property. Considering the same, HMDA had granted technical approval vide its letter dated 08.02.2022 and directed the writ petitioner to approach the Executive Authority i.e. Narsingi Municipality for sanction and release of the same and also directed to deposit local body charges. The writ petitioner had paid an amount of Rs.18,76,256/- on 18.01.2022 and also paid an amount of Rs.9,38,128/- on 24.04.2022. Challenging the said proceedings, the petitioner in the present contempt petition filed a writ petition vide W.P.No.20727 of 2022 and this Court granted interim order and said writ petition is pending. Therefore, according to 1st respondent, President of writ petitioner Society, there is no violation much less willful violation of the order passed by this Court and undertaking given to this Court.
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8. 2nd respondent - Commissioner, Narsingi Municipality, filed counter contending that the contempt petitioner submitted representation dated 04.10.2021 stating that writ petitioner is proceeding with the illegal construction which is in violation of the undertaking given by the writ petitioner and requested to take action. Accordingly, Narsingi Municipality issued notice dated 14.10.2021 to the writ petitioner directing to stop further construction and if any construction is made in violation of the order dated 27.10.2021 in W.P.No.13491 of 2021, necessary action will be taken on the said construction in accordance with law. In spite of giving undertaking before this Court and issuance of notice to stop work, the writ petitioner continued with construction. Therefore, after noticing the same, 2nd respondent Municipality seized the material and warned the writ petitioner not to proceed with construction. After dismissal of the writ petition, 2nd respondent has taken action by partly demolishing the structures on 26.11.2021.
9. Considering the said aspects, this Court vide order dated 21.02.2022 issued Form-I notice to both the respondents.
10. 1st respondent filed additional counter affidavit stating that there is no bar to the writ petitioner under law which prohibits it from 8 KL,J C.C. No.1382 of 2021 making a fresh application before HMDA, especially considering the reasons for rejection of application filed by the writ petitioners holds no good consideration. Subsequently, the Special Tribunal, Ranga Reddy District passed order dated 23.06.2021 clarifying the tile issue in favour of the writ petitioner.
11. The aforesaid facts would reveal that Vishwa Bharathi Educational Society, to which 1st respondent is President, without obtaining permission from HMDA, started construction by invoking deemed clause under Section 20(3) of HMDA Act. In fact, Section 20(3) of HMDA mandates the writ petitioner to submit an intimation to the Metropolitan Commissioner informing about its intention to commence work by availing deemed provision. There is no such intimation submitted by the writ petitioner. This Court considering the said aspects, dismissed writ petition vide order dated 27.10.2021. There is no challenge to the said order and it attained finality.
12. It is also relevant to note that in the said order, liberty was granted to the writ petitioner to challenge the said rejection order dated 21.05.2021. The writ petitioner did not challenge the said rejection order. On the other hand, it has approached HMDA, seeking permission considering the additional proof before it to prove the fact 9 KL,J C.C. No.1382 of 2021 that the land in question is not an evacuee property. In fact, writ petitioner is only a Lessee. It has obtained technical approval dated 08.02.2022. The said proceedings were challenged by the contempt petitioner by way of filing W.P.No.20727 of 2022 and this Court granted interim stay of the said proceedings, dated 08.02.2022. It is brought to the notice of this Court that the said writ petition is pending and said interim order is subsisting.
13. As discussed supra, learned counsel for the writ petitioner gave an undertaking on 06.09.2021 that it will not make any construction in the subject property. Considering the said aspect, this Court extended the interim order dated 17.06.2021 till 15.09.2021 and the same was extended from time to time. In the entire writ petition, there is no mention that the writ petitioner completed construction by laying Slab of Ground, First Floor, Second Floor and laying Slab on 3rd Floor. Now in the counter filed in the present contempt case, 1st respondent in paragraph No.15 stated that as on the date of this Court reserving the matter for orders, writ petitioner had completed the Ground, First Floor, Second Floor and half of Third Floor and it is at the same stage, where it has given in the undertaking to this Court on 06.09.2021.
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14. The said contention of the writ petitioner is contrary to the record and also order dated 27.10.2021. In the writ affidavit, there is no mention about the said fact and even while giving undertaking there is no mention that the writ petitioner has completed the aforesaid construction.
15. As discussed supra, in the order dated 27.10.2021, this Court categorically held that the writ petitioner cannot make construction by availing deemed provision in terms of Section 20(3) of the HMDA Act and it has to intimate to the respondent- Commissioner of HMDA about its intention to commence work by availing deemed provision.
16. As discussed supra, there is no challenge to the said order, dated 27.10.2021 in W.P.No.13491 of 2021 and there is no challenge to the rejection order dated 21.05.2021 by the writ petitioner. Therefore, it cannot contend that it has raised the aforesaid structures as on the date of undertaking dated 06.09.2021. Therefore, according to this Court, there is deliberate violation of the undertaking dated 06.09.2021 given by the writ petitioner represented by its President, 1st respondent herein.
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17. It is also relevant to note that 2nd respondent being Commissioner of Narsingi Municipality instead of demolishing unauthorized structures completely by following the procedure, demolished the structure partly. Thus, he has also committed willful violation of the said order dated 27.10.2021.
18. In the light of the aforesaid discussion, according to this Court, both the respondents have willfully and deliberately violated the undertaking dated 06.09.2021 and order dated 27.01.2021 passed by this Court in W.P.No.13491 of 2021 and they are liable for contempt.
19. In the result, the Contempt Case is allowed. Both the respondents are sentenced to suffer imprisonment for a period of six (6) months each and to pay a fine of Rs.2000/- (Two thousand only) each within four (4) weeks from today.
As a sequel thereto, miscellaneous applications, if any, pending in the Contempt Case stand closed.
________________________ JUSTICE K. LAKSHMAN Date: 04. 09.2023.
20. After pronouncing the order in the open Court, learned counsel for the respondents would submit that they intend to prefer an 12 KL,J C.C. No.1382 of 2021 appeal against this order and sought to suspend the sentence imposed on the respondents in the aforesaid order.
21. In view of the above submission, the aforesaid sentence of imprisonment imposed on the respondents is suspended for a period of ten (10) days from today.
________________________ JUSTICE K. LAKSHMAN Date: 04.09.2023.
SSY/VVR Note: Issue CC today.
b/o. vvr