Bellezza Apartment Owners Welfare ... vs The State Of Telangana, Rep.By Its ... on 4 November, 2022

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Telangana High Court

Bellezza Apartment Owners Welfare ... vs The State Of Telangana, Rep.By Its ... on 4 November, 2022

Bench: Lalitha Kanneganti

     0THE HON'BLE SMT. JUSTICE LALITHA KANNEGANTI

 WRIT PETITIONS No. 31833, 35130 AND 31848 OF 2017
                        AND
     WRIT PETITIONS No 9301 AND 3046 OF 2020
COMMON ORDER:

WRIT PETITION No. 31833 OF 2017 This Writ Petition is filed by Belleza Apartment Owners Welfare Association (hereinafter referred to as 'Bellezza Association') challenging the order passed by the 2nd respondent Greater Hyderabad Municipal Corporation (GHMC) dated 16.09.2017 whereby the representation of the petitioner was disposed of holding that construction of compound wall is treated as unjust as it is in deviation of the sanctioned plan, building rules and in violation of the fire NOC and fire norms. Further, if Belleza Association has any issues with the builder regarding breach of contract, they can approach the appropriate forum.

2. Sri Kishore Rai, learned counsel for the petitioner Association submits that the 3rd respondent (herein-after referred to as 'builder') gave the petitioner Association dreams of owning a luxurious home in a group housing society with "the lifestyle of plush resort" "best-in-class comforts and amenities"

and where "the landscape instantly transports you to California". It is submitted that the 3rd respondent with its 2 marketing had adopted unfair trade practices for the purpose of promoting the sale of its flats and succeeded in trapping innocent consumers with the aid of print and visual electronic media. It is submitted that the members of the petitioner's Association have purchased flats from the 3rd respondent. Lodha Belleza Phase comprises of building Towers 1-A, 1-B, 2-A, 2-B, 5-A, 5-B and 6-A,6-B which are all twin towers with each floor consisting of one apartment and Tower 7 consists of one tower numbered as Tower 7 with each floor consisting of two flats per floor namely Belmont, Belvedere, Beverly Hills, Buena Park, Benicia, Burlingame, Bell Gardens, Bell View and Baldwin Park. That 130 families are residing in the project Bellezza. It is further submitted that the builder has obtained permission in respect of four towers initially on 06.10.2019 and thereafter, obtained permission for future expansion. He submits that in the year 2013, the 3rd respondent without informing the purchasers of apartments in the project came up and initiated development of another project / housing society by name "Lodha Meridian" in the area originally allocated for the project Bellezza and earmarked for the development of the remaining apartments of Bellezza project. The 4th respondent changed the original plans without the consent of the members of the Association and as per the revised plans, the remaining portion 3 was now proposed for construction of 760 flats of different sizes and dimensions which is per se illegal. Learned counsel submits that the 3rd respondent upon being questioned regarding the project Meridian by the purchasers of the Project Bellezza, the members of the petitioner were informed that Meridian was sold as a separate and distinct from Bellezza which could have its own amenities, facilities and would be a completely different housing society. It is also assured that construction of new project would not affect the quality of life of members of 'Bellezza' and he made them to believe that all the facilities of 'Bellezza' are exclusively for owners of 'Bellezza'. It is submitted that in the years 2013 and 2014, majority of the purchasers moved into Bellezza Apartments and started noticing glaring deficiencies in the project and the fraud which has been played on them. The builder has constructed two towers in Meridian project which was erected right in front of Tower 2 and Tower 7 of Bellezza Towers beyond the permissible limit of floors. Learned counsel submits that in spite of several complaints to the Corporation, they failed to take any action and revised permission was also not handed over to the members of the petitioner Association. According to the learned counsel, the permission granted for Lodha Meridian project is illegal as consent of the members of the petitioner Association 4 was not obtained and the same has to be declared as illegal, without jurisdiction and contrary to law and procedure and also contrary to Section 6 of the A.P. Apartments (Promotion of Constructions and Ownership) Act, 1987 (for short, 'the Act'). It is submitted that the members also realised that the 3rd respondent acted fraudulently in getting permission from GHMC as it showed the Meridian towers to be a part of Bellezza project rather than showing it to be a separate project. Further, constant changes in plans and obtaining of permissions by the 3rd respondent in phases is contrary to Section 6 of the Act. It is submitted that the members of the petitioner Association have been cheated by the 3rd respondent and the members had sent representations to the municipal authorities bringing out these deficiencies. It is submitted that the representatives of GHMC inspected the project site and found that illegal and unauthorised construction beyond the permitted floors had been carried out by the 3rd respondent without prior approval. Show cause notice dated 23.08.2014 was issued to the 3rd respondent with a direction to stop all constructions but still, the 3rd respondent has illegally and fraudulently continued and constructed tower after tower with a view to increase its sales despite being fully aware that such construction is illegal, contrary to law and building and fire norms. Learned counsel 5 submits that the 3rd respondent by using illegal and nefarious means has got occupancy certificate issued despite the deficiencies and irregularities in construction of the project and non-compliance of the fire safety norms. It is stated that requisite setbacks have also not been provided between towers. He submits that they have also made representations to the respondents not to sanction any revised plans. The members of the petitioner were induced and coerced to enter into a settlement agreement dated 26.07.2015 and they have also promised the residents of the petitioner Association that they would address all the deficiencies pertaining to fire safety, legal issues and physical demarcation between Lodha Bellezza and Lodha Meridian in approved layout plans with the GHMC and was willing to arrive at a settlement in the best interests of both the parties. It is further submitted that on compulsion, it was proposed by the 3rd respondent and agreed to demarcate 30780 square meters of proportionate land for 360 Bellezza apartments as Bellezza Area separated from Meridian Area to ensure the exclusive use of rights of all amenities in the Bellezza area by the Bellezza apartment owners only and also agreed that there will be a phase boundary between both the complexes between Bellezza and Meridian with chain link fencing and also to incorporate in all the documents to be executed in respect of 6 apartment owners in the Meridian Area that they shall not have any common interest in the area possessed and amenities therein by the Bellezza Apartment. The 3rd respondent also assured that he would obtain sanction for Phase boundary between Lodha Bellezza and Lodha Meridian and also assured the Association that there would be no shared amenities or common areas and facilities between Bellezza and Meridian and the two developments would operate independently. Another agreement was also executed on 26.07.2015 between the petitioner and the 3rd respondent pertaining to the maintenance of common areas and he has undertaken to provide all clearances and NOCs. from all the agencies involved. In furtherance of these agreements, the Association agreed to give its consent / NOC vide letter dated 27.07.2015 to the GHMC for further sanction / grant of various permissions for development of Meridian project subject to the Agreements entered into on 26.07.2015 and a perusal of the NOC clearly stipulates that the NOC is subject to agreement dated 26.07.2015 and as per the revised sanction dated 26.08.2015, they have obtained permission for phase boundary with chain link. It is submitted that this fact is in the notice of the GHMC as the permission was also containing the said agreement dated 26.07.2015. The 2nd respondent is aware that phase boundary with chain link 7 separates two projects ie. Lodha Bellezza and Lodha Meridian. The petitioner has given representation dated 29.02.2016 requesting the GHMC not to grant any further approvals in the light of the NOC given by the petitioner as it was given only towards compliance of terms of the Agreement and not for any other construction. In view of the letter dated 29.02.2016, NOC was revoked. It is further submitted that the builder obtained revised sanction on 26.08.2015 whereby the 1st respondent had accorded sanction for phase boundary and the same was admitted by the GHMC. The project Bellezza was constructed on land admeasuring 36,812.57 square yards out of total land admeasuring 58,101.50 sq. yards and the project Meridian is being constructed on land admeasuring 21,288 sq. yards out of total land admeasuring 58,101.50 sq. yards and both the projects are distinct and separate. Though new sanction is obtained and even flats were sold to the purchasers of Meridian Project that the Project Lodha Bellezza and the project Lodha Meridian are distinct and separate and that the purchasers of project Lodha Meridian are not entitled for amenities in Lodha Bellezza. According to the learned counsel, even in the sale deed of the purchasers of Lodha Meridian Clause 5.3 of the registered sale deed reads as under:

" The purchaser is aware that pursuant to the requisite approvals / sanctions issued by the competent authorities, the promoter is developing the larger property in terms of the larger integrated layout as granted by Greater Hyderabad Municipal Corporation. In terms of the said integrated layout, the promoter is developing the project on a portion of the larger property. On the balance area ie. the Bellezza property, the promoter is developing the residential project known as "Lodha Bellezza" the promoter will be constructing a boundary wall clearly demarcating the boundaries of the project and Lodha Bellezza with separate ingress and egress to both the portions of the Larger Property. The Purchaser / apartment owners in the project shall not have any right, claim or interest, of any nature whatsoever in the Bellezza property and shall not have any access to the common areas and amenities of Lodha Bellezza. The purchaser has no objection in t his regard and waives all his right to raise any objection in this regard".

Learned counsel submits that in view of the recitals of the above-mentioned sale deed, it is crystal clear that both the phases are distinct and separate and the residents of Meridian block are not entitled for the amenities provided to petitioner Association. Basing on the complaint given by the 4th respondent to the 2nd respondent, a notice was issued under Section 452 of the Greater Hyderabad Municipal Corporation Act, 1955 stating that they have issued permission for single layout and the builder has constructed compound wall between Lodha Bellezza and Lodha Meridian. It is submitted that no notice was marked to the petitioner. Thereafter as the builder 9 has not responded to the said notice, the GHMC has issued notice under Section 636 of the Act whereby the builder was directed to remove the unauthorised construction of compound wall between Lodha Bellezza and Lodha Meridian within 24 hours. Later, the Bellezza Association has filed Writ Petition No. 27561 of 2017 and this Court by order dated 17.08.2017 set aside the notice and directed the petitioner to file a reply to the said notice dated 05.08.2017 within one week from the date of receipt of a copy of the order and further, directed the 2nd respondent to consider the reply in accordance with law. It is submitted that thereafter, the petitioner has filed detailed reply to the show cause notice and after hearing the parties, the order impugned dated 15.09.2017 is passed. Learned counsel submits that the respondents failed to consider the representation of the petitioner in its proper perspective and in fact, they have ignored the said representation. It is observed in the order impugned that the phase boundary which is shown in the sanctioned plan is only for temporary demarcation during the construction of the project only but not for division of project for separating Phase I & II (Bellezza Apartment) with Phase III (Lodha Meridian) whereby and whereunder totally depriving the open spaces, amenities, parking area and tot-lot to the Tower 9. Learned counsel submits that sanctioned plan duly 10 contain the phase boundary, now, they come up with the impugned order stating that the temporary permission is granted by them. Learned counsel submits that in the entire GHMC Act there is no provision for granting temporary sanction and Section 428 does not provide for any temporary sanction. GHMC for the best reasons known them, have passed this order. Further, the GHMC in the order impugned has observed that the builder has separated the Tower Nos. 1, 2, 5, 6,7 and amenities (club house) named as Bellezza with Tower 9 (A,B,C), 8D, 3E and additional amenities (named as Meridian) by constructing a permanent barricading compound wall with GI mesh in between the said towers, thereby dividing the total project into two parts ad resulting in shortfall of amenities including open spaces, parking area, tot-lot area for one part of the project i.e. Tower 9 which is against the sanctioned plan and rules. He submits that they are bound by the broacher and amenities provided to them which are duly specified in the broacher as well as the sale deed and as they are aware of the same, they cannot come up before this Court. He submits that Lodha Bellezza is a high-end apartment whereas Meridian is a economical one. Now Meridian Flat Owners Association wants to utilise the facilities of Lodha Bellezza and in that process, they are aware of the fact that as it is mentioned in the sale 11 deed that the facilities of Lodha Bellezza are for that apartment exclusively and they have no access to it. Now under the guise of the orders passed by the respondents, they want to utilise the said spaces. He submits that the respondent Corporation is not concerned with amenities and if the amenities are not given to the flat owners their remedy is to go before the appropriate forum for such relief. He submits that assailing the said order, the petitioner is before this Court. If the order is not set aside, and if the chain link boundary is removed, it would cause lot of hardship to the members of the petitioner association. Learned counsel has drawn attention of the Court to the permission granted, wherein there is a mention about chain link boundary.

3. I.A.No. 1 of 2020 was filed by the persons, who have purchased the property in Lodha Meridian Apartment (hereinafter referred to as 'Meridian Association') and they have stated that the contention of owners of Lodha Meridian stating that the 4th respondent owns Acs.12.09 guntas of land wherein they have constructed multi-storied towers for residential purposes. Sri Pratap Narayan Sanghi, learned Senior Counsel representing Sri Avadesh Narayan Sanghi, learned counsel submits that tower Nos. 1, 2, 5, 6 and 7 were referred as Bellezza Apartment and Tower No. 3, 8, 9 (A,B,C) are mentioned 12 as Lodha Meridian Apartment. Permission was secured for each tower which specifies the area of construction, statutory setbacks required around each tower and common areas namely cellar, sub-cellar, parking, etcetera. All the multi-storied constructions are governed by the statutory provisions of law which are mandatory in nature. The rules are named as The Telangana Building Rules, 2012. Rule 7(a)(x) deals with setbacks require to be followed between each tower and the permission granted by the 3rd respondent Corporation clearly species the distance between each tower. It is required to be followed for fire safety norms under Fire Safety Rules. They also stated the same in a tabular form as under:

Side Required setback Provided setback Deficit North 16.00 M 16.00 M Nil East 16.00 M 16.00 M Nil South 16.00 M 16.00 M Nil West 16.00 M 7.00 M 9.00 M He submits that the State Government has no power or authority or jurisdiction either to relax the statutory setbacks or reduce the common area including the car parking. In this case, in collusion with the 4th respondent, a temporary security chain wall with 3 meters brick wall with chain link was constructed 13 for the purpose of additional construction and it was clearly specified in the said permission that the same is required to be removed on completion of construction and it is mainly to maintain the statutory setbacks of 16 mtrs to front portion of Tower-8(D) and to maintain side setback to Tower 7(E) since statutorily 16 meter setback is required, but the respondents failed to follow the same and GHMC has also not taken the action. It is submitted that the retaining wall which was temporarily constructed by the 4th respondent and when the same was refused to be demolished at the instance of the 1st respondent Association, the 3rd respondent has issued notices. He submits that apart from that the 4th respondent also constructed a inter-mediatory wall in cellar and sub-cellar illegally by virtue of which there is absolutely no access even from cellar and sub-cellar thereby causing great threat to the incumbents and the residents have been making complaint to the authorities in view of the threat of life because it is in gross violation of statutory norms. It is submitted that in fact, a vigilance enquiry was conducted against the 4th respondent and a report was furnished on 03.10.2019 clearly indicating the series of violations committed by the 4th respondent and it is the insensitivity of the Department in not taking any action. Learned Senior Counsel submits that Section 13(1) of Telangana 14 Fire Services Act, 1999 mandates to secure NOC from the Fire Safety Department and Section 13(4) mandates penal action for violating the conditions enumerated in the NOC. Section 14(2) authorises to remove the obstructions which affects the safety of the building. It is submitted that the Fire Safety Authority eve though issued the notice as long back as on 10.01.2018, no orders were passed either under Section 30 or Section 31. It is submitted that both the towers namely 7 and 8 and 213 families are living under threat to their lives, safety and security. The setbacks between the two towers and tot-lot area, open site of 10% and the required parking area was not provided as mentoned in the tabular columns. It is submitted that under Rule 13 mandates that 30% of the area from out of the total site which are required to provide for the purpose of parking but no such area is provided and the 4th respondent is also guilty of non-compliance of the national building code as provided under Rule 15 of the said Rules. Further also guilty of violation of Rule 26(e) whereunder the norms prescribed for a fire safety is not complied. It is submitted that the Division Bench of this Court in Writ appeal No. 1566 of 2017 passed common order dated 31.10.2017 which reads as under:

" We consider it appropriate, in the light of what has been noted hereinabove, to modify the orders of the learned Single Judge, and to direct the Developer not to alienate the balance 15 unsold 73 units, as reflected at Sl.No. 6 of the above-extracted table, until further orders either in the WPMPs. or in the Writ petitions. While the Developer may proceed and execute sale deeds with respect to those persons with whom an agreement of sale had been entered into earlier, they shall do so only on receipt of a written request from such persons, ad a copy of the written request letters shall be marked to both the Welfare Associations.

Needless to state that, since it is only the orders in the WPMPs (under appeal before us) which have been modified, other WPMPs/Writ Petitions shall be heard and decided on its merits uninfluenced by any observations made in this order.

Both the Writ Appeals are disposed of accordingly. Miscellaneous Petitions pending, if any, shall also stand disposed of. There shall be no order as to costs."

It is submitted that the Division Bench has granted injunction prohibiting the 3rd respondent from alienating the property any further. He submits that initially in Writ Petition No. 31833 and 31848 of 2017 status quo with regard to construction was granted and also directed there shall be no further constructions on the subject properties.

4. A counter-affidavit has been filed on behalf of the GHMC. Learned Standing Counsel Sri Sampath Prabhakar Reddy submits that they have received a representation on 25.07.2017 stating that the 3rd respondent has unauthorisedly constructed a compound wall separating Lodha Bellezza and Lodha Meridian Apartments due to which their parking area and tot-lot got reduced and requested to remove the said 16 unauthorised compound wall. It is stated that after examining the same, the respondent Corporation has served a show cause notice under Section 452(1) and 461(1) of GHMC Act, dated 27.07.2017 upon the respondent No.3. Thereafter, they submitted the reply on 31.07.2017 and 04.08.2017 and it is stated that as per their agreement, the area of Belleza Apartments cannot be used by the residents of Meridian Apartment and further, it is decided that boundary between Lodha Meridian and Lodha Bellezza shall be demarcated by 3 feet wall plus 4.5 feet chain link fence upon. It is further stated that thereafter, a Writ Petition No. 26097 of 2017 is filed by the 3rd respondent and the said Writ Petition was disposed of on 04.08.2017 directing the respondent Corporation to follow due process of law. They have issued a notice under Section 452(2) of the Act on 05.08.2017 and notice under Section 636 of the Act on 16.08.2017 directing the petitioner to remove the unauthorised compound wall constructed between Lodha Bellezza and Lodha Meridian. It is submitted that the petitioner has obtained building permission / revised building permission in Sy.No. 1009/P situated at Balanagar Mandal, R.R. District as stated below:

I. Initially a residential apartment blocks permission was obtained by the builder for construction of Block Nos. 1 t 6 consisting of 2 basements + ground + 5 upper floors vide permit No. 167/16, dt. 02.08.2008 in File NO. 496/CSC/TP-14/2008 as per G.O.Ms.No. 86, dt: 03.03.2006. 17 II. Applied for revised multi-storied residential apartments Blocks A & B consisting of 4 basements + ground + 24 upper floors and amenities block consisting of ground + 2 upper floors vide permit No. 23/81, dt. 06.10.2009 in file No 0386/CSC/TP-14/2009.

III. Applied for revised multi-storied residential apartments 2-Tower (Tower -01 & 02) consisting of 4 basements + ground + 32 upper floors and amenities block consisting of ground + 2 upper floors vide permit No. 181/HO/WZ/Cir-14/2010, dt. 04.12.2010 in file No. 071/CSC/TP- 14/WZ/2010.

IV. Applied for revised multi-storied residential apartments 2-Towers (Tower-05 & 06) consisting of 2 basements + ground + 18 upper floors vide permit No. 1068/HO/WZ/Cir.14/2010, dt. 09.02.2011 in file No. 28263/10/09/2010.

V. Applied for revised multi-storied residential apartments 2-Blocks (Tower -05 & 06) additional floor 19th to 39 under floors vide permit No. 14983/HO/WZ/Cir-14/2011, dt. 20.09.2012 in file No. 35945/14/06/2011. VI. Applied for revised multi-storied residential apartments Tower -07 consisting of 21 basements + ground + 39 upper No. 39383/23/06/2011, dt. 20.09.2012 in file No. 39383/23/06/2011. Revised multi storied residential apartments Tower-09 consisting of stilt + ground + 34 upper floors, Tower-03 consisting of basement + ground + 4 upper floors and Tower -08 consisting of basement + ground + 4 upper floors vide permit No. 23690 / HO/WZ/Cir- 14/2013, dt. 06.05.2013 in file No. 77456/12/11/2012 as per dt. 16.05.2013 G.O.Ms.No. 168, in dt. 07.04.2012 (exemption has taken in setbacks from 20.50 Mtrs. to 16.00 Mtrs against area lost in road widening).

VII. Applied for revised multi-storied residential apartments Tower-08 consisting of 5th to 34 upper floors above permitted and Tower -03 consisting of 6th to 34 upper floors above permitted vide permit No. 44523/HO/WZ/Cir- 14/2015, dt. 26.05.2015 in file No. 100254/24/12/2013 (Additional floors above permitted Tower-03 & Tower-08).

VIII. Whereas, the builder has splited the above said sanctioned building towers. Tower No. 1, 2, 5, 6 & 7 was referred as Lodha Bellezza Apartment and Tower No. 3, 8, 9 (A,B&C) is referred as Lodha meridian apartment." It is submitted that they have issued notices to all the parties and heard them on 18.08.2017, 29.08.2017 and 12.09.2017 and the parties have attended the said hearing and the 4th respondent has expressed that due to construction of compound wall between Meridian & Bellezza blocks there is a shortfall in amenities, parking and tot-lot to their block and there is no access between Meridian & Bellezza blocks. It is further submitted that the builder has executed the sale deeds 18 by showing two separate projects and they have requested to remove the compound wall since the compound wall was not sown in the sanctioned plan. Further, the representatives of Bellezza Apartments Owners Welfare Association have expressed that the 3rd respondent has executed the sale deed duly showing ingress and egress for two separate projects and requested not to remove the compound wall. It is submitted that as per the sanctioned plan dated 26.08.2015 permission was accorded for Tower 8(D), 3(E), additional amenities along with the previous sanctioned tower 1, 2, 5, 6, 7, 9(A,B,C) with club house. In the sanctioned plan and building permit order, it is indicated that the total site area as 48580.25 sq. mtrs. Wherein amenities area admeasuring 6690.36 sq. mts., parking area admeasuring 92898.28 sq. mets. And tot-lot area admeasuring 4907.79 sq. mts. were indicated for the total area. The phase boundary with chain link cannot be treated as division of project. Further, the phase boundary with chain link shown in the sanctioned plan is only for temporarily demarcation during the construction of the project only but not for the division of the project, separating the phase-I & II whereby and where under totally depriving the open spaces, amenities, parking area and tot-lot to the Meridian block. It is submitted that the builder has constructed a permanent parking compound wall with GI mesh in between the 19 said towers, thereby dividing the total project into two parts resulting in shortfall of amenities including open spaces, parking area, tot-lot area for the one part of the project i.e. Tower 9(A,B,C), 8D, 3E additional amenities which is against the sanctioned plan and rules. As per the fire NOC the side setback between the Tower-8 ad Tower-7 & Towre-9B, 3E is 16.00 mtrs., whereas due to the construction of the compound wall the setback is reduced to 7.00 mtrs. To 9.6 mtrs at some parts of towers and which is against the fire NOC. Further, if the project to be divided into different parts separately by compound wall, then the required amenities as per rules area to be provided for each part or phase duly obtaining the necessary sanction from respondents' corporation. As the said compound wall is in deviation to the sanctioned plan, they have passed the order impugned to remove the same and also the residents Welfare Association is frequently complaining about the builder regarding the amenities and other issues. It is submitted that they have passed the impugned order in strict compliance with the Rules and directed the builder to remove the said chain link boundary and there is no illegality in the said order.

5. A counter-affidavit is filed on behalf of the builder. Sri V.T. Kalyan, learned counsel for the builder submits that he has filed I.A.No. 2 of 2019 wherein it is stated that he has stated 20 about filing of the Writ Petition and the orders passed in the Writ Appeal. It is submitted that from time to time, the builder made several efforts to amicably resolve the disputes between Bellezza and Meridian Associations. The Bellezza Association having agreed upon terms of settlement of all their disputes in terms of Takeover agreement and Letter of Intent entered into / to be entered into between the parties. It is submitted that there is an arbitration clause in the agreement and any disputes arising out of the said agreement they have to invoke the arbitration clause. He submits that when an effective alternative remedy is available to the petitioner, he cannot file a Writ Petition before this Court. The Application of the Chief Fire Officer, No Objection Certificate which is required prior to issuance of occupancy certificate has been refused to be accepted by GHMC orally citing the orders of this Court, as such, grant of Occupancy Certificate for Meridian Wings has been kept pending and non-grant of fire NOC and OC are causing huge injustice to this petitioner and several occupants / residents of Meridian despite the fact that the construction of the towers concerned is complete in all respects. In view of the pending disputes with Lodha Meridian Apartment Owners Welfare Association, there is no access to the parking earmarked for Meridian Towers at Basement Level which is 21 located within Lodha Bellezza's physical footprint. It is submitted that the dispute between both the Associations with regard to the phase boundary is a mala fide attempt by select residents of Lodha Meridian to cause a dispute and gain power. At all times, Meridian was shown as a separate phase from Bellezza. It is neither legally nor morally justified for either of the Associations to stake claim to the amenities of the other phase or seek to interfere in their day to day life. Multi-phase developments with different amenities are prevalent all over the country. Further, it is stated that in view of the revised plans / lay out sanction, the impugned notices issued by the 3rd respondent, which are under challenge shall also be rendered infructuous. It is submitted that the builder has completed the project and the issues between the petitioner and Bellezza Apartment Owners Welfare Association have been resolved. However, GHMC has refused to grant Fire NOC and Occupancy Certificate for Meridian Complex Buildings. Hence, he sought permission to alienate or sell 73 units in Meridian Blocks. WRIT PETITON No: 35130 of 2017:

6. This Writ Petition is filed by the residents of Belleza apartments. They have questioned the revised sanction dated 16.05.2013 and revised sanction in respect of Meridian block dated 26.08.2015 as illegal and without jurisdiction. In this 22 Writ Petition, the contentions as raised in support of Belleza Associatin in Writ Petition No. 31833 of 2017 were raised. Hence, it is not necessary to reproduce the same.

7. A counter-affidavit has been filed by the respondent GHMC. Even the counter averments have been reiterated as that of Writ Petition No. 31833 of 2017.

8. A counter-affidavit has been filed by the 3rd respondent builder. It is stated that the builder has sold apartments to various purchasers / persons who have executed the sale deed. As per clause 23.1 of the sale deed, if the dispute is not resolved by way of discussion, the parties can resort to arbitration clause in terns of Arbitration and Conciliation Act, 1996. After purchasing the apartments, both Bellezza and Meridian owners i.e. the two phases, the respective flat purchasers are in continuous use, occupation and enjoyment of their respective flats and the dispute arise in respect of phased boundary with chain link which is stipulated in the sanctioned plan. The purpose of the phased boundary with chain link is only to demarcate two complexes ie. Bellezza and Meridian. The phased boundary with chain link is existing on the ground level and to avoid the recurring costs and frequent repairs of the phased boundary with chain link, a wall was constructed by resolving the dispute by mutual discussions and agreement of 23 the apartment owners. The said resolving of the disputes was recorded in the memorandum of understanding dated 26.07.2015. It reads as under:

" F. The Developer and owner agreed to demarcate the boundaries between the Bellezza and Meridian by constructing a phased boundary (a 3.5 ft. wall + 4.5 ft. chain link fence) and also incorporate in all the documents to be executed in respect of apartment owners in Meridian area that they shall not have any common interest in the area possessed by the Apartment Owners of Bellezza."

It is submitted that in conformity with the MOU, a clause was incorporated in the sale deeds executed with the purchasers of Meridian Apartments as a part of the terms and conditions for purchase of apartments in Meridian complex. The said clause reads as under:

" 5.3 The purchaser is aware that pursuant to the requisite approvals / sanctions issued by the competent authorities, the promoter (i.e. the developer) is developing the larger property in terms of the larger integrated layout as granted by Greater Hyderabad Municipal Corporation. In terms of the said integrated layout, the promoter is developing the project on a portion of the larger property. On the balance area i.e. the Bellezza property, the promoter is developing the residential project known as "Lodha Bellezza". The promoter will be constructing a boundary wall clearly demarcating the boundaries of the project and Lodha Bellezza with separate ingress and egress to both the portions of the larger property. The purchaser / apartment owners in the project shall not have any right, claim or interest, of any nature whatsoever in the Bellezza property and shall not have any access to the common areas and amenities of 24 Lodha Bellezza. The purchaser has no objection in this regard and waives all his right to raise any objection in this regard."

It is submitted that contrary to the said clause in sale deeds, Meridian Apartment owners through their Association, independently raised a dispute for removal of the phased boundary with chain link on the ground that same is not in the sanctioned plan. It is submitted that though they are aware of the same and the same is stated in their sale deeds they are taking inconsistent pleas and stands. He submits that the issue relating to phased boundary with chain link is part of the sanctioned plan granted by the GHMC and the purchasers of flats in Meridian are stopped from raising the dispute with respect to the phased boundary with chain link either before the corporation or this Court.

WRIT PETITION No. 31848 OF 2017

9. This Writ Petition is filed by M/s Lodha Healthy Constructions and Developers Private Limited questioning the action of the respondents (hereinafter referred to as 'builder') in issuing the notice dated 14/15/09/2017 declaring the structures erected on the premises of the petitioner to be unauthorised and also direct the petitioner to demolition of the structures on the petitioner's premises within 24 hours without following due process of law as arbitrary ad illegal. 25

10. Learned counsel for the petitioner Sri V.T.Kalyan submits that the petitioner is a company engaged in the field of development and construction of state of the art, residential housing projects promote by the prestigious Lodha Group. They have developed an ultra-model housing project at Kukatpally and the three towers styled as "Lodha Meridian" which is part of a larger venture comprises of three towers with 772 flats. It is submitted that the venture is nearing completion, and at the stage of grant of occupancy certificates with a number of flats having been sold and final finishing work is being done. It is submitted that the petitioner has erected a temporary compound wall consisting of three feet high brick wall and fencing on top of it so as to restrict the access of construction workers on the Lodha Meridian site from the other parts of the larger venture and the said wall also finds place in the revised sanctioned plan dated 26.08.2015. Learned counsel submits that the respondents are attempting to high-handedly demolish the structures without any basis and without issuing any notice. The hurried action in attempting to demolish the structures at the petitioner site are clearly influenced by extraneous factors and do not have any basis in law. The respondents have failed to consider the request of the petitioner for adjournment due to law and order situation and they were 26 never given any comprehensive notice with regard to removal of electric substation and no specific reply was sought for and the same issue has been discussed in the 3rd meeting which the petitioner could not attend. It is also submitted that the respondents high-handedly issued the impugned notice without giving an opportunity to the petitioner to make its submissions with regard to the chain link fence separating the venture ad without any discussion whatsoever upon removal of the electric sub-station situated on the premises. Hence, they sought a consequential direction to provide proper opportunity to give reply upon the alleged deviation pointed out by the GHMC before allowing the GHMC to take coercive action against the premises of the petitioner.

11. This Court on 18.09.2017 passed an interim order of status quo with regard to the subject construction and against the said interim order, Writ Appeal is filed.

12. I.A.No. 1 of 2020 is filed to implead the proposed petitioners as Respondents 5 to 17 to the Writ Petition. The averments raised in this Petition are same to that of the averments filed in I.A.No. 1 of 2020 in Writ Petition No. 31833 of 2017. The GHMC has filed a counter-affidavit.

13. A reply affidavit is filed on behalf of the builder stating that the present implead petition is not at all 27 maintainable and they have not even pleaded much less established as to how they are necessary parties for the purpose of adjudication and how their interest, in any manner, would get affected particularly when as it is apparent from the broachers of Meridian phase as well a the sale deeds executed between the proposed respondents and the answering respondents the said proposed respondents have no right and title.

WRIT PETITION No. 9301 OF 2020

14. This Writ Petition is filed by the petitioner questioning the action of the respondents in not considering and sanctioning the revised lay out plans submitted by the petitioner in respect of Meridian Complex on 16.11.2019 and consequently, not issuing Fire NOC and Occupancy Certificate in pursuance of the representation dated 08.01.2020. Further, to direct the respondent to sanction the revised plans submitted by the builder in respect of Meridian Complex.

After the petitioner has received notice dated 16.08.2017 directing the petitioner to remove the phased boundary thereafter an order was passed on 15.09.2017 holding that the compound wall is illegal and also Section 636 notice was issued which is subject matter of Writ Petition No. 31848 of 2019 and thereafter, an order was passed in Writ Petition against that Writ Appeals are preferred. It is submitted that in 28 the meanwhile, the petitioner completed construction of Meridian complex and except for one of its buildings, in relation to the other buildings, the Fire NOC for completion has not been issued till date and has been kept pending. It is further submitted that initially, upon completion of the other buildings, when an attempt was made to submit the application for issuance of Fire NOC for completion, GHMC officials orally informed that GHMC shall not process any further permissions on account of the orders passed by this Court. It is submitted that in relation to one building, the application for grant of Occupation Certificate by the petitioner has been kept pending for over two years and the Application for fire NOC for the other buildings which have been completed has been kept pending till date. It is submitted that having revised the plans as per the statutory requirements including allotting necessary amenities to both Bellezza and Meridian phases, approached the respondents to consider the revised site / layout plans and sanction the same. It is further submitted that as per the observations of the 2nd respondent, if the project is to be divided into different parts separately by a compound wall, then the required amenities and tot lot which is to be provided as per rules, falls short. But in view of the revised site / layout plans which would provide required / additional amenities and tot-lot 29 in accordance with the extant GHMC Rules are required to consider and approve the same. Further, for the purpose of NOC, as per G.O.Ms.No. 7, dated 05.01.2016, sanction of revised plans / issue Occupancy Certificate without any basis in the said representation, they have clearly mentioned that GHMC in terms of the order of the GHMC wherein it is observed that the project has to be divided into two parts separated by a compound wall then as per Rules need to be provided for each part of the phase after duly obtaining necessary sanction from GHMC and to bring about pending issues they have submitted a proposal for revised lay out and in accordance with GHMC Rules and Regulations and sought approval for

(i) provision of maintaining minimum clear 7 mtr. setback of 7 mtrs. on all sides as per Amendment 16 of G.O.Ms.No. 7, dated 05.01.2016 of the Municipal Administration and Urban Development Department;

(ii) Provision of required tot-lot area (open green space) after 7 mts. setback in meridian phase;

(iii) provision of phase boundary wall between Bellezza and Meridian phase;

(iv) Relaxation in set back as per G.O.Ms. 168 against area surrendered to GHMC;

(v) Additional amenities to be constructed on the Meridian phase. The petitioner has also furnished what is the proposed extent as under:

Particulars Area required to be Area actually provided provided (sq. mts) afer revised plan (sq. mts) Meridian Plot (Sub Plot X 18125 B) Tot Lot area as per G.O. 1812.50 1820,42 86 (Rule 10.7(e) & 168 30 (10% of site area) (Rule 8(g)) Amenities required as 3678.19 3680.82 per G.O. 168 (3% of built up area)

15. In the counter-affidavit, it is stated that the petitioner's revised building permission and other request will be processed after vacating the court orders and as per the Rules in force by following the due process.

WRIT PETITION No. 3046 OF 2020

16. This Writ Petition is filed by the residents of Lodha Meridian Apartments questioning the action of the Respondents 2 and 3 in not effecting demolition of illegal intermediatory wall pursuant to the order passed on 14.09.2017 and 10.01.2018 by the Respondents 2 and 5. Further to declare that the action of the 2nd respondent in not passing any orders pursuant to the representations dated 11.10.2018 and 15.10.2018 for removal of intermediatory wall at the cellar and sub-cellar of Lodha Meridian and Bellezza Apartments. Further, to declare that the agreement between Respondents 3 and 4 dated 26.07.2015 is contrary to the provisions of the GHMC Act and Fire Services Act.

17. Bellezza Apartments have filed their counter reiterating the same.

18. Additional material papers are also filed. 31

19. Learned Government Pleader for Home filed counter affidavit stating that the District Fire Officer, R.R. Division issued notice in Form-12 dated 10.01.2018 to the 4th respondent for violation of fire prevention and fire safety measures in mandatory open spaces. In the said notice, it is directed to rectify the deficits ensuring the safety and complying with the NOC for occupancy within 30 days from the date of receipt of the notice failing which action will be initiated as per Section 31 of Telangana Fire Services Act, 1999. In spite of issuing the said notice, the 4th respondent did not comply with the said deficiencies. Thereafter another notice in Form-14 dated 23.03.2018 was issued directing to rectify the above defects and reset the fire protection system ensuring safety within 30 days. It is submitted that after issuing the above-said notices, the 4th respondent did not rectify the deficiencies as such a complaint vide STC/CC No. 3/2019 was filed before the XIX Metropolitan Magistrate at Prashanthnagar, Kukatpally against the 4th respondent to take cognizance of the offence and issue summons for appearance and take action against him as per provisions under Section 31 of the Telangana Fire Services Act, 1999. It is submitted that they have taken action against the builder.

20. Having heard learned Senior Counsel and learned counsel on either side, perused the entire material on record.

21. All these Writ Petitions are filed by two Associations ie. Bellezza and Meridian Associations, builder of these apartments and the allegations and the issues involved are one and the same. Hence, the Writ Petitions are disposed of by way of a common order.

22. The facts in nutshell are that initially, the builder has constructed the premises known as 'Lodha Bellezza' ie. Towers 1-A, 1-B, 2-A, 2-B, 5-A, 5-B and 6-A, 6-B which are twin towers consisting of one apartment and Tower 7 consists of two flats per floor. It is the grievance of Bellezza Association that without informing the purchasers of the apartment, the builder has initiated another project by name 'Lodha Meridian' without the consent of the members of the Association for construction of 760 flats of different sizes and dimensions. When they objected for the same, the developer has entered into a settlement dated 26.07.2015 with Lodha Bellezza Association, thereafter, the Association agreed to give its consent / NOC by letter dated 27.07.2015 to GHMC for further sanction and basing on this agreement / MOU between the parties, the builder has obtained revised sanction on 26.08.2015 and accordingly, a phased boundary is constructed and the same 33 finds place in the plan. Now it is the grievance of Bellezza Apartment that the builder has failed to fulfil several promises or the amenities that were promised and secondly, in view of the notice issued by the respondent municipal corporation if the phased boundary is removed, Lodha Meridian Association people will be using the amenities of the high-end apartment when Meridian block is economical one. They have issued NOC as it is agreed that the amenities that were provided to them will be exclusively used by them. It is stated that while executing sale deeds for Lodha Meridian, Clause 5.3 was incorporated making a mention of boundary wall and also the amenities which are exclusively belong to Lodha Bellezza. It is the case of Lodha Meridian Association that because of this phased boundary, the required setbacks are not left and it is contrary to the building norms and the Fire Safety norms. According to them, on the western side, they should have left the setback of been 16 meters, whereas they provided only setback of 7 meters and the deficit of 9 meters is because of the phased boundary. The State Government or any Authority has no jurisdiction to relax the said setbacks. Further, they have also stated about several deficiencies because of the lapses on the part of the builder. According to the Meridian Association, this phased boundary is a temporary one which has to be removed. As far 34 as GHMC is concerned, even according to them, chain link is only for dividing the two places and it is a temporary one and the builder has to remove the same after the construction is completed. Hence, they have passed the orders directing them to remove the said phased boundary and it is as per the provisions of the Act and there is no illegality.

23. The admitted facts in these Writ Petitions are that the builder had obtained NOC from the owners of Lodha Bellezza by way of a MOU / agreement whereby he has promised them to provide a demarcation between Lodha Meridian and Lodha Bellezza and even while applying for permission, he has mentioned about this MOU and NOC from the Association. Further, in the sale deeds of Lodha Meridian i.e. Clause 5.3, this particular aspect is mentioned. At the cost of repetition, it is necessary to look at Clause 5.3 which reads as under:

" 5.3 The purchaser is aware that pursuant to the requisite approvals / sanctions issued by the competent authorities, the promoter (i.e. the developer) is developing the larger property in terms of the larger integrated layout as granted by Greater Hyderabad Municipal Corporation. In terms of the said integrated layout, the promoter is developing the project on a portion of the larger property. On the balance area i.e. the Bellezza property, the promoter is developing the residential project known as "Lodha Bellezza". The promoter will be constructing a boundary wall clearly demarcating the boundaries of the project and Lodha Bellezza with separate ingress and 35 egress to both the portions of the larger property. The purchaser / apartment owners in the project shall not have any right, claim or interest, of any nature whatsoever in the Bellezza property and shall not have any access to the common areas and amenities of Lodha Bellezza. The purchaser has no objection in this regard and waives all his right to raise any objection in this regard."

24. Now from the sale deeds, it is very much clear that owners of Lodha Meridian are aware of this boundary wall that is existing differentiating Meridian and Belleza Apartments. It is also undisputed fact that Lodha Bellezza is high-end apartment and Lodha Meridian is of more economical compared to that, the price and facilities also vary between the two. Naturally, a person, who spends more amount will get better facilities than the person, who purchased the property for a lessor price. The owners of Lodha Meridian cannot be permitted to blow hot and cold at the same time when they themselves have accepted the conditions and covenants which is evident from the sale deed and having purchased the property, now it is not open to them to take a 'u' turn and it is also not permissible to submit that they are entitled for all the facilities, other amenities which are being utilized by the residents of Lodha Bellezza. Even it is not open to the municipal corporation to say that the said phased boundary is a temporary one and as rightly pointed out by Bellezza Association, any of the Rules of GHMC do not 36 contemplate a temporary structure in a plan. When NOC is issued by Bellezza Apartment owners stating that on the specific condition they are issuing the No objection and if it is the case of the municipal Corporation that it is not permissible to erect a phased boundary and all the amenities have to be used by both the Associations, they ought to have stated that it is not permissible to have a phased boundary between Lodha Meridian and Bellezza. Nothing has been stated by them and they have also shown the said phased boundary in the plan. Taking into consideration Clause 5.3 of the sale deed, MOU and the approved plans by the GHMC, this Court comes to an irresistible conclusion that there is a phased boundary and the amenities that are provided for Lodha Bellezza exclusively belongs to the members of Lodha Bellezza.

25. Lodha Meridian Association has submitted that there are several lapses on the part of the builder stating that he did not provide amenities as promised to them. In that case, their remedy is to go before an appropriate forum seeking relief against builder for any of the lapses on his part. However, when it comes to the mandatory setbacks there cannot be any dispute on this and it is the duty of the builder to provide the same and these latches cannot be cured. On the western side where the phased boundary is there, the setback is supposed to be 16 37 meters. Even, as per the Meridian Association what is provided is only 9 meters between the phased boundary and the tower. There is a deficit of seven (7) meters.

26. The learned Senior Counsel has relied on the judgment of the Apex Court in Supertech Limited v. Emerald Court Owner Resident Welfare Association1, wherein it has been held as under:

" Violation of the NBC 2005

121. We shall now address the question of whether the third revised plans violated the NBC 2005. As we have seen above, NBC 2005 is referenced in Regulations 24.2.1(6) of the NBR 2010, NBC 2005 has two parts in regard to the maintenance of open spaces - para 8.2.3.1 and para 8.2.3.2, para 8.2.3.1 provides for open spaces for buildings above the height of 10 m, which are specified in Table 2, Table 2 indicates that the side and rear open spaces correspond to the height of the building and increase accordingly, beginning with 3 for a building of a height of 10 m and up to 16 m, where the height of the building is 55 m and above. In addition, Note 3 clarifies that where either the length and depth of the building exceeds 40 m, the minimum distance which is prescribed must be further increased by ten percent of the length and depth of the building minus 4 m. Thus the calculation for the side and rear open spaces to be left around the building would be as follows:

Height of the building (third revision) (second revision) Minimum distance prescribed 84.5 m 12 73 m in col 3 of Table 22 (for building above 55 m) Distance to be maintained as per 16 m 16 m Note 3:

Distance in col (3) + 10% of 16 + 10% 16+10% (73)-4= The length or depth of building (84.5) - 4= 19.3 m

-4.0 m 20.45 m 1 (2021) 10 Supreme Court Cases 1 38

122. Thus, according o the NBC 2005, the spacing between T-1 and T-17 should be 20.45 m. Evidently, then the second and third revised plans were not in accordance with the NBC 2005. This conclusion is fortified by the report of the NBCC, which in para 5 reaches the conclusion that the minimum open space around T-17 is to be 20.45 m. and thus, the distance between T- 1 and T-17 does not comply with Para 8.2.3.1 of the NBC 2005.

125. The appellant requested for afire NOC for the construction of T-16 and T-17. On 11.09.2009, a report was submitted to the CFO observing that the road is wide enough for vehicles of the Fire Brigade Department to reach the spot in case of emergency situations. However, Clause 10 of the report states that Part III and Part IV of the NBC 2005 will have to be complied with during the construction of the building and in case of non- compliance, the NOC shall stand cancelled. Para 8.2.3.1 of the NBC 2005 prescribes a minimum of 16 m for the side and rear open spaces of buildings which are 55 m high and above.

161. The judgments of this Court spanning the last four decades emphasise the duty of planning bodies, while sanctioning building plans and enforcing building regulations and bye-laws to conform to the norms by which they are governed. A breach by the planning authority of its ........." There is no quarrel about the fact that all these requirements are mandatory. The builder has completed the construction basing on the plans approved by the respondent Corporation. This Court has already observed in the preceding paragraphs that chain link is part of the plan and during the course of hearing, on a query from the Court to the learned counsel appearing on behalf of the builder that in the process of 39 maintaining the statutory setbacks, why cannot the phased boundary with chain link can be removed from there and why cannot they install the same at a distance after providing the requisite 16 meters ie. deficit of 7 meters. Learned counsel for the builder as well as learned counsel appearing for Lodha Bellezza Association have agreed for the same. Learned counsel for the builder stated that they are ready to do the same, provided permission is granted by the municipal corporation.

27. In view of the same, this Court is inclined to direct the builder to take appropriate steps for rectifying the setbacks. As already, there is an existing 9 meters setback, further 7 meters shall be left by the builder by moving the phased boundary. By virtue of the same, the statutory setbacks as required as per the Fire Norms will be fulfilled. Several people have purchased the property and started residing in the same and the municipal corporation has also approved the plans taking into consideration the NOC. Several people purchased the property and in view of the orders passed by this Court, everything has been stalled. In the larger interest of people, this Court inclines to dispose of the Writ Petitions in the following manner:

RESULT:

WRIT PETITION No. 31833 of 2017 40 The Writ Petition is allowed. The impugned proceedings dated 17.09.2017 are set aside and phased boundary with chain link shall be constructed leaving 16 meter required set back ie. the deficit 7 meters. In this regard the 2nd respondent shall grant necessary permission. No order as to costs.

WRIT PETITION No. : 35130 of 2017 The Writ Petition is dismissed. No order as to costs.

WRIT PETITION No. 31848 of 2017 In the light of the order passed in Writ Petition No. 31833 of 2017, no further orders are required to be passed. The Writ Petition is closed. No order as to costs.

WRIT PETITION No. 9301 of 2020

In the light of the order passed in Writ Petition No. 31833 of 2017, this Writ Petition is disposed of directing the respondents to consider the representation of the petitioners within a period of six weeks from the date of receipt of a copy of this order in accordance with law. No order as to costs.

WRIT PETITION No. 3046 of 2020

In the light of the order passed in Writ Petition No. 31833 of 2017, whereby proceedings dated 17.04.2017 are set aside, this Writ Petition is dismissed. No order as to costs.

28. Consequently, the miscellaneous Applications, if any shall stand closed.

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LALITHA KANNEGANTI, J 04th November 2022 ksld 42

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