Telangana High Court
Hal Employees Coop Housng Socy Ltd, R.R. ... vs Commissioner, Ghmc, Hyd 2 Ot on 25 April, 2022
Bench: Satish Chandra Sharma, Abhinand Kumar Shavili
THE HON'BLE SRI JUSTICE NOOTY RAMAMOHANA RAO
WRIT PETITION NOs.38265 OF 2012, 39402 OF 2012
AND
41 OF 2013
COMMON ORDER:
These three cases are heard together as they propose to deal with one and the same subject property. W.P.No.38265 of 2012 was instituted seeking a Writ of Mandamus for declaring the action of the respondents in trying to demolish the shed/prayer hall known as Calvary Temple situate in Sy.No.77 Part, Hafeezpet Village, Serilingampally, Rangareddy District, without following the due process of law as illegal and untenable and consequently to direct the respondents not to demolish or interfere with the construction activity of the petitioner. W.P.No.41 of 2013 is instituted by the same petitioner seeking a Writ of Mandamus for declaring the proceedings of the first respondent-Greater Hyderabad Municipal Corporation dated 18.12.2012 as illegal and arbitrary and in violation of the principles of natural justice.
W.P.No.39402 of 2012 was instituted by HAL Employees Cooperative Society Limited, challenging, in essence, the laxity of the respondents in preventing illegal construction activity in the land belonging to it.
The case of the petitioner Society in W.P.No.39402 of 2012 is that, it has purchased land measuring Ac.62.06 guntas situate in Sy.No.77, Hafeezpet, Hyderabad from the claimants and registered general power of attorneys in Civil Suit No.14 of 1958 on the file of the High Court of Andhra Pradesh. The remaining extent of land situate in that survey number namely, Ac.65.04 guntas was acquired by the State Government for construction of a water reservoir, for formation of an approach road, for railway track for operating MMTS, etcetera. The claim made by the State Government with regard to the land purchased by the petitioners has been negatived by the Court. Hence the writ petitioner purchased the land and made allotments of individual plots in favour of its members also. The preliminary decree passed in the aforementioned civil suit was in fact contested by the State Government before the Supreme Court and after losing their claim, the State Government passed orders through their Memo No.28908/JA1/2004-1 dated 05.11.2004 directing the District Collector to handover position of the land and also to mutate the names of the eligible purchasers in the revenue records. Thus, when the claim made by the State Government over this very land was pending adjudication, illegal attempts were made by the encroachers, real estate dealers, local politicians and anti social elements who have freely created unregistered assignment deeds, unregistered agreements, fake claims under the disguise of the legal heirs of few of the dispossessed defendants in C.S.No.14 of 1958. They have also successfully persuaded the district revenue administration and managed to obtain mutation orders during pendency of the litigation. After the litigation was over, the petitioner society has lodged a complaint with the Tahsildar, Serilingampally to cancel the unlawful mutations made by the department. After a thorough verification of the record, the Tahsildar submitted a report to the Joint Collector who in-turn after following the due process, cancelled the mutation orders.
When they approached the Commissioner and Inspector General of Stamps and Registration, he issued orders in his memo dated 17.09.2012 directing the District Registrar, Ranga Reddy to conduct an enquiry and pass necessary orders for canceling the documents which were registered earlier unauthroizedly. Directions were issued to the Sub-Registrar to proceed in accordance with Section 83 of the Registration Act, 1908. The necessary follow up action is in progress. The petitioner's society has also submitted an objection to the Commissioner of Greater Hyderabad Municipal Corporation to take steps to prevent all illegal constructions over the land in question. Very strangely, while the Hyderabad Metropolitan Development Authority has shown that the land in question has fallen within conservation zone, even after massive constructions are being undertaken very illegally, the Greater Hyderabad Municipal Corporation has turned a nelsons eye towards the same as the constructions are undertaken by an influential segment of the society. Hence, they instituted this writ petition.
W.P.No.38265 of 2012 and W.P.No.41 of 2013 were instituted by the same party which was making constructions of a prayer hall in the land situate in Sy.No.77 Part in Hafeezpet, Serilingampally Mandal. Affidavit filed in support of both these writ petitions were sworn to by one Dr. P. Satish Kumar, Founder President, Calvary Temple. It is asserted by him, that he is the owner and possessor of land of an extent of 9500 sq.yds in Sy.No.77 Part, Hafeezpet village, having purchased the same vide document No.10798/2012 dated 11.09.2012 and document No.10789/2012 dated 11.09.2012 from the previous lawful owner Sri Mohd. Iqbal Ali Khan. It is stated that the petitioner has submitted an application on 30.10.2012 to the respondent- Greater Hyderabad Municipal Corporation for construction of a shed for conducting prayers by the devotees and since there was no response rejecting or accepting the said application, an intimation was issued to the respondents on 30.11.2012 for construction of a shed for Calvary Temple prayers. It is further asserted that, the petitioner has received a notice dated 28.11.2012, delivered on 03.12.2012 requiring the petitioner to show cause under Sub-section (1) of Section 452 and Subsection (1) of Section 461 of the HMC Act, 1955 (henceforth referred to as 'Act' for brevity), why the structures could not be pulled down. Subsequently, another notice dated 04.12.2012 was also issued to the petitioner directing it to submit detailed proposals together with drawings for the proposed construction in accordance with the provisions contained under Section 428 and 433 of the Act. It is the case of the petitioner that, necessary detailed documents and drawings were furnished to the Municipal Corporation on 06.12.2012 and sought for grant of permission to construct the prayer hall. On 10.12.2012, the officials of the Greater Hyderabad Municipal Corporation have visited the site and unleashed a threat of demolition of the sheds constructed there and hence W.P.No.38265 of 2012 was filed.
In the affidavit filed in support of W.P.No.41 of 2013, in paragraph 7 it is asserted that the petitioner has proceeded with the construction of the prayer hall and 90% of the construction work is completed and the petitioner is conducting its prayers regularly in the said prayer hall and at that stage on 18.12.2012, the Greater Hyderabad Municipal Corporation has intimated the petitioner that the request for construction of a prayer hall is rejected and hence challenging the said rejection order, the second writ petition is instituted.
It has therefore become necessary to examine as to whether the petitioner in these two writ petitions has submitted any application in accordance with Section 428 of the Act seeking permission for construction of a building. The case set up by the petitioner is that, it has filed an application on 30.10.2012 before the Greater Hyderabad Municipal Corporation seeking building permission. It is therefore appropriate to extract the contents thereof in toto.
" CALVARY TEMPLE # 12-6-19/3, Opp: Metro, Kukatpally, Hyderabad-500 072.
To The Dy. Municipal Commissioner, GHMC, Chandanagar, Serilingampally (Mdl), Hyderabad Date: 30th Oct, 2012 Dear Sir, Sub: Request for permission to construct Prayer Hall (Hundred and Ten x Eighty length Shed) at our Calvary Temple and bearing Survey No.77(Part), Hafeezpe;t, Serilingampally Mandal, Hyd-reg.
We the Church Members of Calvary Temple request you to kindly grant us permission to construct a Prayer Hall at our Calvary Temple land bearing survey no.77(Part Hyderabad.
Everyday many devotees do come to Calvary Temple Land to pray, for which we need a Prayer Hall.
For which act of kindness we shall remain grateful to you.
Thanking you Sir,
Yours sincerely,
S. Jayaraj
For Calvary Temple "
It appears, this representation is received in Serilingampally (North) Circle II on 31.10.2012. Though, it is asserted that the intimation of commencement of construction was said to have been delivered on 30.11.2012, no such document has been exhibited in W.P.No.41 of 2013, but however, at page No.39 of the paper book filed in W.P.No.38265 of 2012, the letter of intimation dated 30.11.2012 is placed, which reads as under:
" Date: 30-11-2012
To
The Deputy Commissioner
Circle-12, Serilingampally
West Zone, GHMC
Sir,
Ref: Our letter dated 30-10-2012 for permission of construction of shed of prayers at Calvary Temple in Survey No.77 Part of Hafeezpet, Serilingampally, RR Distrct.
******** We have made an application on 30.10.2012 for construction of shed for prayers at Calvary Temple in Survey No.77 Part of Hafeezpet, Serilingampally, RR District, but till today we have neither received permission nor rejection from your office. As such we are proceeding construction under the deemed provision 437 as per Municipal Law without any deviation.
This is for your information.
Yours sincerely, (Dr. P. Satish Kumar) "
When we contrast this letter dated 30.11.2012 with the one dated 30.10.2012, it clearly emerges that the one dated 30.10.2012 was drawn on the printed letter head of the Temple and also bears the inward seal of the Serilingampally (North) Circle-II dated 31.10.2012. The letter dated 30.11.2012, in contrast has been drawn on a plain white paper and does not bear the seal or signature of anyone representing the temple and most significantly does not bear any seal of receipt on behalf of the Greater Hyderabad Municipal Corporation. Therefore, I am not willing to attach any legal significance to it. Significantly, on 04.12.2012, the Deputy Commissioner has directed the petitioner not to proceed with any type of construction activity at the site till specific permission is granted by the Greater Hyderabad Municipal Corporation, while requesting the petitioner to submit the proposals/drawings in detail in accordance with the provisions contained under Sections 428 and 433 of the GHMC Act. Earlier thereto, on 28.11.2012, the petitioner was directed to show cause as to why the unauthorized constructions made by it be not dealt with in accordance with Subsection (1) of Section 452 and Subsection (1) of Section 461 of the Act. It is the stated case of the petitioner that on 06.12.2012, it has submitted another representation enclosing a copy of the documents and plan with regard to the proposed construction of the prayer hall. This letter also requested the Corporation to compound the matter in accordance with Section 455-A of the Act. Ultimately, the Municipal Corporation has turned down such a request on 18.12.2012. Two reasons are assigned for rejecting the request for compounding. One is that, as per the master plan, the site is falling in conservation zone and further there is a title dispute pending in the High Court.
Hence, the request of the petitioner for construction of a prayer hall is rejected. It is this order which is the subject matter of challenge in the second writ petition.
Heard Sri Vedula Venkataramana, learned senior counsel appearing for and on behalf of M/s S. Rohit Ram and Sri S. Sreedhar, learned counsel for the petitioner in W.P.No.38265 of 2012 and W.P.No.41 of 2013 and Sri Kuncham Maheswara Rao, on behalf of the petitioner Society in W.P.No.39402 of 2012.
Section 428 of the Act required every person, whoever intends to erect a building to give a notice to the Commissioner of his intention, in a form obtained for this purpose under Section 435 of the Act, specifying the position of the building intended to be erected, the description of the building, the purpose for which it is intended, its dimensions and the name of the person whom one is intended to employ to supervise its erection. Upon receipt of such an intimation, in terms of Subsection (1) of Section 429 of the Act, the Commissioner may, at any time within thirty days, by written notice require the person who has given the notice under Section 428 to furnish the information specified in Clauses a to d of the said subsection, which included correct plans and sections of every floor of the building intended to be erected, drawn to a scale of not less than one inch to every eight feet and shall also show the position, form, dimensions and means of ventilation and of access to the several parts of such building and its appurtenances. Such plans are also required to show the depth and nature of the foundations and the proposed dimensions of all the walls, posts, columns, beams, joints and all girders and scantlings to be used in the walls, stair cases, floors and roofs of such buildings. A copy of the title deed, specification of each description of the work proposed to be executed and of the materials to be employed, the proposed method of drainage of the buildings, of the sanitary fittings to be used and the means of water supply and if required by the commissioner, the information shall also be supplemented by detailed calculations showing the sufficiency of the strength of any part of such building, a block plan of such a building which shall be drawn to the scale of the largest revenue survey map at the time being in existence for the locality in which the building is intended to be constructed, the position and appurtenances of the properties, if any, immediately adjoining the width and level of the street in front and of the street, if any, at the rear of such building, the levels of foundations and of the lowest floor of such building and a plan showing the intended line of drainage of such building, and the intended size, depth and inclination of each drain and arrangement proposed for the ventilation of the drains, etcetera. In terms of Section 430, the Commissioner may require the plans submitted to be drawn by a licensed surveyor. In terms of Section 431, any additional information that might be required by him, may also be called for, to enable him to deal satisfactorily with the case. Section 432 of the Act made it clear that, if any requisition made under Section 429 or 431, if not complied with, the notice given under Section 428 shall be deemed not to have been so given. Section 435 required the Commissioner to cause printed forms of notices for the purposes of Section 428 or 433 or of the plan, section, description or further information, if any, called for under Sections 429, 431 or 434 as the case may be, the Commissioner fails to intimate in writing, to the person who has given the said notice, his disapproval of the building which the said person proposes to erect, the said person may, at any time within one year from the date of delivery of the notice to the Commissioner, proceed with the said building or work in accordance with his intention as described in the notice, but in the process he shall not contravene any of the provisions of the Act or any bye-laws made thereunder. Subsection (1) of Section 440 makes it clear that, no person shall commence to erect or re-erect any building or to execute any such work as is described in Section 428, until he has given notice of his intention to erect such a building to the Commissioner and the Commissioner has either intimated his approval or failed to intimate his disapproval within the period specified in Section 437 or 438 and until he has given notice to the City Engineer of the proposed date of commencement.
What emerges from a scan of these legal provisions is that, every person whoever intends to erect a building, shall cause a notice of his intention to do so, to be delivered to the Commissioner at the first instance. Such an application shall also accompany the necessary drawings to a scale and also accompany the necessary documents. If no approval is either communicated or no disapproval is communicated within thirty days from the date of delivery of such a notice in accordance with Section 428 of the Act, then, the applicant can commence the construction activity only after he has given notice to the City Engineer of the proposed commencement of the constructions. In the instant case, there is no such application made by the petitioner at all in accordance with Section 428 of the Act. What all was done was to submit a representation dated 30.10.2010 made to the Deputy Commissioner, extracted supra, required the Deputy Commissioner to grant permission to construct a prayer hall. By no stretch of imagination, can this representation dated 30.10.2012 be treated as a notice required to be delivered to the Commissioner under Section 428 of the Act. When once there is no application, seeking building permission submitted in terms of Section 428, the operation of the fictional clause, thrusting an obligation on the Commissioner to either convey his approval or disapproval within thirty days, would not simply arise. Such an obligation is cast on the Commissioner only where an application in accordance with and in conformity with law is delivered under Section 428, but not otherwise. If there is no such application tendered in accordance with Section 428, the question of thirty days time elapsing there from is of no legal significance whatsoever. Therefore, the petitioner in these two cases could not have lawfully commenced the constructions on 30.11.2012. Even otherwise, if the petitioner has not delivered any notice of his intention to commence the construction to the City Engineer - specifying the date of commencement - which is a distinct and different agency from the Commissioner, in accordance with Section 440(1)(b) of the Act, the petitioner could not have commenced the constructions. Far more significantly, by 04.12.2012, the petitioner has been intimated by the Deputy Commissioner to submit the proposals/drawings in detail in accordance with Sections 428 and 433 of the Act. Inspite of the same, the petitioner has not cared to comply with this requirement of law. The Deputy Commissioner has also directed the petitioner not to proceed with any type of construction activity at the site till specific permission is granted by the Greater Hyderabad Municipal Corporation. Obviously, the petitioner has not cared much for this. Assuming, for the purpose of argument that the petitioner has commenced the constructions on 30.11.2012, he ought to have stopped the constructions upon receipt of the communication dated 04.12.2012. He has not done so. On 06.12.2012, he submitted another representation seeking grant of permission for erection of building. This time around, he was emboldened to seek compounding of his act in accordance with Section 455-A of the Act as well. It is, therefore, crystal clear that the petitioner has taken things for granted. The petitioner has not complied with the provisions of Sections 428, 429, 430 and 431 of the Act at all. Hence the question of a fictional approval of the building permission would not simply arise. Further, the petitioner has not also complied with the requirements of Section 440.
While entertaining this writ petition on 03.01.2013, a detailed order was passed by me directing the Commissioner, Greater Hyderabad Municipal Corporation to depute the Deputy Commissioner of the Corporation and also any other officers not below the rank of Assistant City Planner and other Engineering Department personnel of the Corporation to undertake an inspection of the premises where constructions are carried on and to make a detailed note of the constructions standing thereon and to submit a report latest by 11.01.2013 to me. Accordingly, the Commissioner has constituted a committee consisting of the Deputy Commissioner (Circle No.12), Addl. Chief City Planner (West Zone) and Executive Engineer (Circle-12) to inspect the site in question and take note of the illegal constructions raised by the petitioner organization. Accordingly, this committee inspected the site in question on 09.01.2013 and submitted its inspection report together with the photographs taken at the site in question. From this report, the following tabulated statement would depict the true picture of constructions standing there at the site.
Name of the structure: Built up area
A. Prayer Hall
- Ground Floor 363'.0" x 235'.0" = 91839 sq.ft (8532.12 sq.mts)
- Mezzanine floor 672'.0" x 253'.0" = 170016 sq.ft (1579.92 sq.mts)
B. T e n t Erected on MS Frame 300'.0" x 234'.0" = 70200 sq.ft (6521.79 sq.mts) (Prayer Hall) C. A C Sheet Shed open shed (not 228'.0" x 120'.0" = 27360 sq.ft (2541.82 sq.mts) yet occupied) D. AC Sheet Shed 142'.0" x 26'.06" = 3763 sq.ft (349.59 sq.mts) (Office & Store) E. AC Sheet Shed 74'.0" x 33'.0" = 2442 sq.ft (226.86 sq.mts) (Mini Prayer Hall) F. Toilet Block 50'.0" x 28'.0" = 220 sq.ft (20.43 sq.mts) G. Overhead Water Tank (4 Sintex tanks capacity of 20,000 lts) H. AC Sheet Shed (Store) 266'.0" x 20'.0" = 5320 sq.ft (494.24 sq.mts) I. Ov erhead Water Tank under 20'.0" x 20'.0" = 400 sq.ft (37.16 sq.mts) construction stage (Pillars raised) J. Toilet block (Completed) 32'.5" x 14'.0" = 445 sq.ft (42.27 sq.mts) K. Generator Room 40'.0" x 20'.0" = 800 sq.ft (74.32 sq.mts) In my opinion, if the petitioner has commenced the constructions, as claimed by it only on 30.11.2012, they would not have reached the present stage in less than six weeks period. It is therefore obvious that the writ petitioner had commenced making constructions much prior to 30.11.2012 itself.
Requirement of submission of building plans seeking approval of the competent authority is not a mere ritual or revenue generating exercise. The Act has been made for securing a proper and planned growth of the city. Haphazard growth is not going to contribute in any meaningful manner to the civic life of the society at large. Building bye-laws are made, zonal development plans are drawn, keeping in view the objective of achieving a planned and strategic growth of the city. The petitioner in the instant case, as is now clear, has taken law into his hands and taken it for granted. Obviously because of its reach, the petitioner has assumed that none can deal with his default. This is totally unacceptable on the part of anyone. A person who takes law into his hands and does not show any respect to law, can least except the law in-turn to respect him and come to his rescue. As I could notice, from my very little experience of life and matters, most human miseries befall due to lack of adherence to principles and values and one of those principles talks of adherence to law. No one can assume his position to be higher than that of law. Submission to law is the basic requirement of an orderly society, otherwise chaotic results will follow. If each one of the members of the society were to take law for granted, there is no way an order and that too a proper order can be established in such a society. There is no way, I can countenance the conduct of the petitioner in these two writ petitions in proceeding with making massive constructions, without making even a pretence of adherence to law. Any sympathy shown to the cause of such a petitioner could be a completely misplaced one. Therefore, I have no manner of doubt in my mind that the constructions erected and standing on the site in question by the petitioner in these two cases are wholly unauthorized and unlawful constructions and they deserve to be pulled down and shall not be allowed to be put to use.
However, Sri Vedula Venkataramana, learned senior counsel has made an attempt to demonstrate that the case of the writ petitioner can fall within the four corners of Section 455-AA of the Act. Before I deal with this contention canvassed by the learned senior counsel, I would prefer to examine the provision contained in Section 455-A of the Act first. This is a special provision conferring certain powers on the Commissioner and this provision was introduced by the Amending Act 9 of 2008 which was brought into force with effect from15.12.2007. Section 455-A conferred power on the Commissioner to regularize constructions made without obtaining sanctioned plan, subject to fulfilling the conditions specified in Clauses (a), (b) and (c) thereof. The first condition requires the applicant to submit his building plan to the competent authority duly paying all categories of fee and charges and that Clause (b) specifically points out that the construction shall be subject to the condition that all parameters laid down in relevant statutes, Master Plan, Zonal Development Plan, Building Bye-Laws, Building Rules and other relevant Government Orders including Andhra Pradesh Fire Service Act, 1999 and the National Building Code are satisfied. Clause (c) required payment of penalty equivalent to thirty three percent (33%) of the various categories of fees and charges payable by the applicant for obtaining building permission in addition to the regular fee and other charges payable. Obviously Section 455-A which conferred extraordinary powers upon the Commissioner, required him to regularize constructions made without obtaining sanctioned plan. This provision clearly thus indicates that constructions made as of 15.12.2007 without obtaining the sanctioned plan are intended to be dealt with. This is obviously a one time exercise which the statute maker intended to cover. Section 455-A, therefore cannot be read as an exception to Section 428 or other provisions of the Act. Therefore, all such constructions which are made after 15.12.2007 or being made now cannot be covered by the sweep of Section 455-A of the Act.
Obviously realizing this particular difficulty, the learned senior counsel has advanced an argument that the case of the writ petitioner is covered by the provisions contained in Sections 455-AA but not Section 455-A, as requested by the petitioner in their representation dated 06.12.2012. A reading of Section 455-AA makes it explicitly clear that the Municipal Commissioner may regulate and penalize the constructions or buildings, unauthroizedly or in deviation of the sanctioned plan made as on the date of the commencement of the Andhra Pradesh Municipal Laws and Urban Areas (Development) (second Amendment) Act, 2008, as a one time measure. By levying such penal amount as may be prescribed and upon payment of such amount, all pending or contemplated proceedings and all actions for enforcement shall be deemed to have been withdrawn and the competent authority shall issue necessary Occupancy Certificate to the owner or the individual as the case may be. This provision is also a one time exercise liable to be indulged in by the Commissioner. No doubt, this provision deals with constructions made unauthroizedly or by any deviation of the sanctioned plan. Constructions made in deviation of the sanctioned plan may not pose much of a difficulty, in the sense, that there is available a sanctioned building plan and by departure there from constructions are made and hence they are called constructions made in deviation of the sanctioned plan. But unauthorized constructions, what do they represent is the question. Nowhere the expression 'unauthorized construction' has been defined by the Act. If a particular type of constructions are not allowable in accordance with the Master Plans or Zonal Development Plans, the very construction of such building cannot be treated as unauthorized constructions. They become illegal constructions. For instance, in a residential zone, if heavy industrial constructions are undertaken, it will be wholly an illegal act. It is not a mere activity of unauthorized construction. If a building plan for construction of four floors is secured and instead of confining the construction to four floors, an additional floor is also constructed, that would amount to unauthorized construction. Therefore, the objection raised by the Commissioner in his proceedings dated 18.12.2012 that the constructions undertaken by the petitioner cannot be allowed as the land falls in conservation zone, cannot be taken exception to. Change of land use cannot be permitted by the Commissioner in exercise of power available to him under Section 455-AA. Therefore, the provision contained in Section 455-AA of the Act is also not attracted to the case on hand.
The inspection report submitted by the Commissioner on 11.01.2013 is taken on record. The writ petitioner society in W.P.No.39402 of 2012 is fighting parallelly, claiming the land in question as the one purchased by them pursuant to a preliminary decree passed in C.S.No.14/1958 and the preferential claim set up by the State there against, has been successfully got defeated by them. Therefore, no exception is called for to the orders passed by the Commissioner on 18.12.2012 with regard to the title dispute. Accordingly, W.P.No.38265 of 2012 and W.P.No.41 of 2013 are dismissed at the admission stage. No costs.
W.P.No.39402 of 2012: Admit Rule Nisi. Call for records. Notice returnable in four weeks. Pending further consideration, the respondent- Greater Hyderabad Municipal Corporation is directed to forthwith take all necessary steps to remove and raze to the ground all illegal and unauthorized constructions raised in land falling in Sy.No.77 (Part), Hafeezpet, Serilingampally Mandal, within a period of fifteen days from the date of receipt of this order and file a detailed compliance report in that regard, together with the photographs taken of the complete demolitions of all structures before the Registrar (Judicial), Andhra Pradesh High Court, who will place a copy thereof on the file of W.P.No.39402 of 2012. Until further orders are passed by this Court, the Corporation will take necessary steps to prevent any such illegal constructions are put to use.
________________________________ NOOTY RAMAMOHANA RAO, J 21st January, 2013 sp