Andhra HC (Pre-Telangana)
Shri Ratan Kumar, S/O. Raghunath, Aged ... vs Greater Hyderabad Municipal ... on 14 August, 2015
Author: P.Naveen Rao
Bench: P.Naveen Rao
THE HONBLE SRI JUSTICE P.NAVEEN RAO
WRIT PETITION NOs.1470 of 2015
14-08-2015
Shri Ratan Kumar, s/o. Raghunath, Aged 48 years, Occu: Business, r/o. H.No.15-
1-91/2, Old Feelkhana, Hyderabad and two others. Petitioners
Greater Hyderabad Municipal Corporation, rep.by its Commissioner, Tank Bund
Road, Hyderabad and others. . Respondents
Counsel for the petitioners : Sri V.M.M.Chary, counsel for
petitioners in WP Nos.1470 and
16690 of 2015;
Sri A.K.Kishore Reddy counsel for
Petitioners in WP No.4306 of 2015
Counsel for the:Sri N.Ashok Kumar, standing Respondents:counsel for R1 to R3,
Sri. A.K.Kishore Reddy counsel
for R4 to R6 in W.P.No.1470 of
2015;
Sri N.Ashok Kumar, standing counsel
for R1 and R2,
Sri V.M.M.Chary, counsel for R3 & R4
in W.P.No.4306 of 2015;
Sri N.Ashok Kumar, standing
counsel
for R1 to R3 in WP No.16690 of
2015.
<Gist :
>Head Note:
? Cases referred:
1.(1981) 3 sCC 317
2.2004 (9) SCC 204
3.AIR 2010 SC 3817
HONBLE SRI JUSTICE P.NAVEEN RAO
WRIT PETITION NOs.1470, 4306 and 16690 of 2015
COMMON ORDER:
These three writ petitions concern subject matter of adjacent properties belonging to rival groups. Both of them allege unauthorized illegal constructions made by the other party in violation of mandate of Hyderabad Municipal Corporation Act, 1955 (for short, Act, 1955), Rules made there under and the building permissions granted in their favour. Having regard to the same, all these three writ petitions are disposed of by this common order.
2. Heard learned counsel for the petitioners and learned standing counsel for GHMC.
3. W.P.No.1470 of 2015 is filed alleging inaction of the respondents 1 to 3 in not discharging their statutory duties by initiating action for removal of illegal and unauthorized constructions undertaken by the respondents 4 to 6 in house bearing No.15-1-91/7, Old Feelkhana, Hyderabad in violation of sanctioned plan dated 12.02.2013, without leaving the setbacks and encroaching the petitioners property.
4. As a counterblast, W.P.No.4306 of 2015 is filed by the building owners bearing Municipal No.15-1-91/7, alleging inaction on the complaint given by the petitioners on 27.01.2015 regarding removal of unauthorized construction raised by the respondents 3 and 4 therein by deviating from the sanctioned plan accorded to them in the year 2002 and seeking consequential direction to respondents 1 and 2 therein to take necessary action upon the complaint given by the petitioners.
5. As a consequence to the complaint given by the petitioners in W.P.No.4306 of 2015, notices under Section 452(1) and 461 (1) of the Act were issued on 10.03.2015 to the petitioners in W.P.No.1470 of 2015 followed by notice under Section 452 (2) of the Act on 06.06.2015 and notice under Section 636 of the Act dated 08.06.2015. Challenging these notices, petitioners in W.P.No.1470 of 2015 have instituted W.P.No.16690 of 2015.
6. For convenience sake, parties are referred to as arrayed in W.P.No.1470 of 2015.
7. According to the petitioners, petitioners and three brothers of first petitioner are the owners of property bearing house no.15- 15-1-91/2, Old Feelkhana, Hyderabad. In order to accommodate the growing family needs, owners of the building have applied for building permission for construction of ground floor plus two upper floors and permission was granted by the municipal corporation on 17.08.2002. However, in deviation of the said plan, petitioners have constructed Cellar plus two additional upper floors and pent house than the original permission granted to them. However, Government formulated a scheme of regularization and penalization of unauthorized constructions made in the urban areas and notified Rules in G.O.Ms.No.901 dated 31.12.2007. Taking advantage of the said Rules, petitioners have applied for regularization of unauthorized constructions made by them on 28.04.2005 by enclosing relevant documents. Petitioners have submitted four separate applications and paid Rs.80,000/- as initial amount payable in accordance with the Rules. According to the petitioners, said building regularization application is pending consideration by the respondent corporation. While so, petitioners having noticed that their neighbours of property bearing house No.15-1-91/7 in deviation of the sanctioned plan, undertaking construction of cellar, ground floor and five upper floors and as a commercial building, that they have not observed setbacks in all four sides and encroached into the land of petitioners, complained to the respondent corporation. Since there was no action on the part of the respondent corporation and the construction is proceeding at brisk pace, petitioners filed W.P.No.1470 of 2015. This Court directed the officials of the respondent corporation, by order dated 29.01.2015, to ensure that no constructions are made by the party respondents in deviation of the permissions granted to them.
8. As a counterblast, the said neighbours (party respondents) complained against the petitioners alleging that illegal constructions were made by the petitioners. They have also instituted W.P.No.4306 of 2015 alleging illegal constructions made by the petitioners. Notice before admission was ordered in the said writ petition.
9. On 10.03.2015 respondent corporation issued notice under Sections 452(1) and 461(1) alleging that illegal constructions are made by the petitioners in deviation of the sanctioned plan and that the said constructions are in violation of Rules notified vide G.O.Ms.No.168 dated 07.04.2012. Petitioners claim to have submitted their representation on 13.05.2015 alleging that they have submitted four building regularization applications in accordance with the Rules notified vide G.O.Ms.No.901 dated 31.12.2007 and the said applications were not disposed of and, therefore, the question of taking penal action on the allegation of unauthorized constructions made is not valid. It is also contended that there cannot be a common notice under Sections 452 and 461 of the Act and the same is illegal. On 06.06.2015, notice under Section 452(2) of the Act, 1955 was issued. Petitioners were told that their building regularization application was rejected due to non-submission of shortfalls as notified on 12.11.2008 and, therefore, petitioners were informed that further action would be taken as per Section 636 of the Act. Accordingly, notice under Section 636 was issued on 08.06.2015 directing the petitioners to remove the unauthorized constructions made. Challenging the said notice, W.P.No.16690 of 2015 is filed.
10. The party-respondents were served notice dated 28.12.2013 by the respondent corporation alleging that party respondents have constructed cellar against sanctioned ground and first floor for residential purpose and the aforesaid constructions are in violation of Rules notified under G.O.Ms.No.168 dated 07.04.2012. They were served further notice dated 18.12.2014 under Section 452(1) and 461(1). In the notice, it is alleged that party respondents have constructed cellar, four upper floors and pent house against sanctioned ground and first floor for residential purpose, that they have not maintained all round setbacks and that four floors are in violation of Rules notified vide G.O.Ms.No.168 dated 07.04.2014. Alleging that illegal interference and obstruction to undertake construction of the building as proposed, party respondents instituted O.S.No.2326 of 2014 on the file of VI Junior Civil Judge, City Civil Courts at Hyderabad praying to grant permanent injunction restraining the respondents corporation and its employees etc., from interfering with the construction work or demolishing any part of the suit properties either in whole or in part. By order dated 29.12.2014 made in I.A.No.827 of 2015 in the above suit, learned VI Junior Civil Judge, directed the parties to maintain status quo until filing of the counter by the respondent corporation. As informed by the learned counsel for party respondents and learned standing counsel for respondent corporation, the said suit is pending.
11. Learned counsel for petitioners contends that the petitioners were granted building permission as early as on 17.08.2002. Petitioners have constructed two upper floors and pent house in addition to the permission granted to them, but on account of scheme formulated by the Government in the year 2007, they have applied for regularization of unauthorized constructions made in deviation of the sanctioned plan strictly in accordance with rules notified in G.O.Ms.No.901 dated 31.12.2007 by enclosing the relevant documents as well as requisite fee. Said building application is still pending and without disposing of the building regularization application, no coercive action can be taken against the petitioners. Learned counsel strenuously denies the stand of the respondent corporation that their building regularization application was rejected. He submits that copy of notice dated 12.11.2008 was not served on the petitioners. He submits that sending the notices by way of certificate of posting is not valid in law and no credence can be given to such procedure and it is deemed that no notice was served on the petitioners. Unless appropriate notice is served on the effected party, no coercive action can be taken. In support of his contention that sending notice by way of certificate of posting is not valid, learned counsel placed reliance on the decision of the Supreme Court in the cases of Msr.L.M.S. Ummu Saleema vs. Shri B.B.Gujaral and another and M.S.Madhusoodhanan and another v. Kerala Kaumudi (P) Ltd., and others . He, therefore, submitted that the regularisation of building application is deemed to be pending and unless and until such application is rejected, no further coercive steps can be taken and, therefore, the impugned notices are null and void and liable to be set aside.
12. He strenuously denies the stand of the respondent corporation that building regularization scheme has come to an end on 31.05.2013 and that since regularization was not granted before that date, it is deemed that regularization application is rejected. He further submits that there is no deeming clause. Several regularization applications are still pending with the corporation and even now respondent corporation is granting regularization of illegal and unauthorised constructions made.
13. He further submits that if only the intimation was served on them, they would have availed remedy of appeal as provided under Rule 11 of the Rules notified in G.O.Ms.No.901. Since the Rules vests substantive right in the petitioners to avail remedy of appeal against any decision of the original authority on the issue of regularization of unauthorized construction claim, no such right can be denied on mere assumption that notices sent by certificate of posting were deemed to have been served long ago.
14. Learned counsel appearing for party respondents submits that the petitioners are only unnecessarily harassing and humiliating the party respondents. He further submits that party respondents have not encroached into the property of the petitioners and only to harass and humiliate them, false complaint is generated against party respondents and under the guise of the orders of this Court, petitioners are interfering with the day to day construction activity even though party respondents are making constructions within the building already constructed.
15. Learned counsel for the party respondents opposes the claim of the petitioners that their building application is pending and, therefore, no coercive steps can be taken against them. He submits that section 27 of the General Clauses Act clearly infers presumption of service of notice once it is sent and therefore as municipal corporation has sent the notices to the petitioners by endorsement dated 12.11.2008 that notice is deemed to have served on them and therefore the action taken by the respondent corporation which resulted in issuing impugned notices which are challenged in W.P.No.16690 of 2015, which action initiated at the instance of the party respondents is legal and valid and since the petitioners have made illegal constructions in deviation of the sanctioned plan, such constructions have to be removed.
16. Learned counsel further submitted that aggrieved by the notices issued against party respondents, they have moved VI Junior Civil Judge Court in O.S.No.2326 of 2014 and the learned Judge granted order of status quo and, therefore, no coercive action can be taken against the party respondents during the pendency of the said suit and, therefore, W.P.No.1470 of 2015 filed by the petitioners is not maintainable and is liable to be dismissed.
17. Learned standing counsel submitted that petitioners as well as party respondents have admittedly made illegal constructions in deviation of the respective sanctioned plans. Both have made complaints against each other alleging such illegal constructions. On due verification of the respective complaints, appropriate action was initiated against the respective parties. Insofar as petitioners are concerned, Section 636 notice was issued on 08.06.2015 for removal of unauthorized constructions made, but on account of orders passed by this Court, during pendency of these writ petitions, no further action can be taken. He further submits that action was properly initiated by the respondent corporation to remove unauthorized and illegal constructions made.
18. He contended that the only defence put up by the petitioners is that they have submitted applications for building regularization in the year 2008. But, as seen from the record of the municipal corporation, the said applications were scrutinized and petitioners were directed to comply with the objections noticed therein. By way of endorsement dated 12.11.2008, the same was communicated to them. Since petitioners have not submitted the documents as required under the said endorsement, it is deemed that no such building permission is pending and, therefore, coercive action is taken against the petitioners is legal and valid. He further submitted that according to the records of the municipal corporation, the said endorsement was sent by way of certificate of posting and the certificate of posting is obtained from the postal department, which is filed before this Court, which shows that the said endorsements were sent to the petitioners and it is deemed that it is served on them. If the petitioners are really sincere about pursuing the building regularization application, they ought to have pursued the matter further at least thereafter. But, until the notices were issued by the respondent corporation, which are impugned in the writ petition No.16690 of 2015, they kept quiet. It is significant that the petitioners are aware of the rejection of the endorsement dated 12.11.2008 and kept quiet without submitting the relevant documents. In support of his contention that notice sent to the petitioners by way of posting is valid, he placed reliance on the decision of the Supreme Court in Greater Mohali Area Development Authorities and Others vs. Manju Jain and Others .
19. Learned standing counsel further submitted that though notices were issued to party respondents against illegal constructions made, no further action could be taken in view of the pendency of O.S.No.2326 of 2014 on the file of VI Junior Civil Judge and the order of status quo granted by the said court on 29.12.2014. The municipal corporation is pursuing the matter before the said Court.
20. Insofar as taking penal action against party respondents is concerned, as admitted by the learned standing counsel, the party respondents have filed O.S.No.2326 of 2014, which is pending on the file of VI Junior Civil Judge, City Civil Courts at Hyderabad and in I.A.No.827 of 2015, learned Junior Civil Judge passed orders on 29.12.2014 directing the parties to maintain status quo and the said order is in force till date. In view of the fact that the matter is ceased by VI Junior Civil Judge, no direction can be given for removal of alleged illegal and unauthorized construction undertaken by the respondents 4 to 6 as alleged in W.P.No.1470 of 2015 at this stage. Thus, the Writ Petition No.1470 of 2015 is liable to be dismissed and is accordingly dismissed.
21. Admittedly, petitioners have made constructions in deviation of the sanctioned plan and, therefore, there is no illegality in taking action for removal of such constructions. However, taking advantage of the regulation/penalisation scheme formulated by the State, petitioners have applied for regularization of illegal construction made by them by paying appropriate fee. If applications for regularization of illegal construction are pending, no coercive action can be taken, more particularly, in view of the provision contained in Sections 455-A and 455-AA of the Act and Rules made there under.
22. In the facts of this case, therefore, the question for consideration is whether the petitioners applications for regularization were rejected as claimed by the respondent municipal corporation ?
23. Learned standing counsel placed reliance on the proceedings dated 12.11.2008, where under intimation notices were issued to the individual petitioners informing them certain deficiencies in the application filed for regularization, directing them to comply with the said objections. In the said notices, they were informed that applications cannot be taken up for scrutiny unless information as indicted is submitted by the applicants. Learned standing counsel stated that these notices were sent to the petitioners under certificate of posting. The copies of notices along with xerox copies of proof of sending notices by certificate of posting are furnished to the counsel for the petitioners and circulated to this Court. The notices disclose the addressees and sending of the notices by certificate of posting. On the above submission, there was extensive debate.
24. The plea taken by the learned counsel for the petitioners is sending the notices by certificate of posting does not amount to valid service of notice and, therefore, it is deemed that no such notice is sent. In support of the said contention, learned counsel placed reliance of two decisions referred to above.
25. In Mst. L.M.S. Ummu Saleema (supra 1), reliance was placed in defence of the stand by the detenu that he retracted the earlier statement long before the order of detention was made and the fact of such retraction was not considered by the detention authority before making the order of detention. The said contention was denied. The detenu contended that after his release on bail, he addressed a letter to the Assistant Collector of Customs, Cuddalore, retracting his former statement and same was sent under certificate of posting. There was denial of receipt of such statement by Customs Authorities. Supreme Court rejected the said contention. Supreme Court held as under:
6. The certificate of posting might lead to a presumption that a letter addressed to the Assistant Collector of Customs was posted on August 14, 1980 and in due course reached the addressee. But, that is only a permissible and not an inevitabe presumption. Neither Section 16 nor section 114 of the Evidence Act compels the court to draw a presumption. The presumption may or may not be drawn. On the facts and circumstances of a case, the court may refuse to draw the presumption. On the other hand the presumption may be drawn initially but on a consideration of the evidence the court may hold the presumption rebutted and may arrive at the conclusion that no letter was received by the addressee or that no letter was ever despatched as claimed. After all, there have been cases in the past, though rate, where postal certificates and postal seals have been manufactured.
26. In M.S.Madhusoodhanan (supra 2), similar issue has arisen for consideration. Supreme Court rejected the stand of sending notice by way of certificate of posting as valid notice. Matter arisen under the provisions of the Companies Act. Supreme Court held as under:
124. In the present case, the certificate of posting is suspect.
Assuming that such suspicion is unfounded, it does not in any event amount to conclusive proof of service of the notice on Madhusoodhanan or on any of the other addressees mentioned in the certificate as held by the Division Bench. Except for producing the dispatch register and the certificate of posting, no one on behalf of the respondents came forward to vouch that they had personally sent the notice through the post to Madhusoodhanan and his group. Madhusoodhanan had written two letters contemporaneously dated 4-8-1986 and 8-8-1986 (Ext. P-24 and Ext. P-35) to Srinivasan, the General Manager of Kerala Kaumudi and to Madhavi complaining that he was not receiving any mail at all. These letters were admittedly received but not replied to by the respondents. It is also apparent from a perusal of those letters that Madhusoodhanan had no knowledge whatsoever of the notice for application for allotment of additional shares. Had there been such notice it is improbable that Madhusoodhanan who was fighting for retaining his control over Kerala Kaumudi, would have risked losing such control by abstaining from applying for the additional shares.
125. In the circumstances, we hold that Madhusoodhanan and his group were not served with the notice dated 1-8-1986. It is, therefore, unnecessary to decide whether the period prescribed in the notice to apply for the shares was too short or contrary to the Articles of Association of Kerala Kaumudi.
27. Provision in Section 27 of General Clauses Act read with Section 114 of Indian Evidence Act, gives rise to presumption of service of notice if it is sent to correct address by registered post. As seen from the provision in Section 27 of General Clauses Act to draw presumption of service of notice, notice must be sent by registered post and to the correct address. In this case, the primary requirement to attract provision in Section 27 of General Clauses Act is not fulfilled. Admittedly, in this case, notice was sent by certificate of posting.
28. Learned standing counsel contended that even assuming that the notice sent by way of certificate of posting was not acknowledged by the petitioners, the fact that petitioners kept quiet for so long is deemed that petitioners were aware of rejection of their application by the respondent corporation. Their silence for such a long time, denies their claim that no such notice was served on them and in the circumstances and by the conduct of the petitioners, it is deemed that the petitioners were aware of the decision of the corporation as communicated in the intimation notice dated 12.11.2008. In support of the said contention, learned standing counsel placed reliance on decision of the Supreme Court in Greater Mohali Area Development Authority (supra 3).
29. The decision relied upon by the learned standing counsel is distinguishable on facts. As noticed from the judgment, respondent therein applied for allotment of a flat under a hire purchase scheme. After conducting draw of lots, respondent was informed of allotment by letter dated 19.11.1997. The contents of the said letter would disclose that she was required to pay the amount for the flat. Letter of allotment was issued on 09.03.1999, which indicated the price of flat to be paid and the mode of payment. The letter describes six days time from the date of issue of the allotment letter to make the payment. Respondent did not deposit any amount. On enquiry made by the respondent, she was informed that since amount was not paid within the time granted, allotment made was cancelled. This was challenged before the Appellate Authority as well as Revisional Authority and on dismissal of revision, writ petition was filed. The W.P. was allowed on the ground that allotment letter was not sent to the correct person to the correct address by relying on the receipt and despatch register of the authority. No opportunity of hearing was afforded to the authority.
30. It appears from the reading of the judgment that the allotment letter was sent by registered post. There was no reply of acceptance of allotment nor amount was deposited. From the record of Revisional Authority, Supreme Court also noticed that in the ground raised before the Revisional Authority, the respondent contended that due to some financial difficulties, she could not arrange the huge sum of Rs.1,19,800/- to be paid within the stipulated period, that she also approached banks for loan, but loan was not granted and that since funds are now arranged, she is willing and ready to make the payment. Having noted the above grounds, Supreme Court held that the said statement clearly implies that the respondent was aware of the allotment letter in the time schedule prescribed and due to personal reasons only the amount was not paid. Supreme Court also noticed that the contention of non-receipt of letter of allotment was raised for the first time before the High Court, whereas no such contention was raised before the Appellate Authority and the Revisional Authority. In the facts of said case, Supreme Court observed that in view of the grounds raised before the Revisional Authority and that the respondent kept quiet for more than four years and because of her own faults, there was no concluded contract between the parties, the question of handing over the possession of flat did not arise. The Supreme Court held that respondent therein had knowledge of the intimation given by appellant and subsequent conduct of the respondent disentitles the respondent to the relief as granted by the High Court.
31. In the two decisions relied by learned counsel for petitioner, Supreme Court held that ordinarily certificate of posting cannot amount to effective service of notice. However, in a given case, it is permissible to the Court to presume service of notice sent by certificate of posting by looking into surrounding facts. The learned counsel for the respondents contended that the fact that petitioners kept quit for long time would show that they were aware of such intimation. Thus, learned standing counsel was specifically asked as to whether any despatch register was maintained by the respondent municipal corporation and whether there was any proof of despatch of intimation notice dated 12.11.2008. Learned standing counsel, on instructions, informed the Court that no despatch register is available and there is no other proof of sending the notices. Except copy of intimation letters and the stamp paper of certificate of posting, there is no other material available on record to show that letters were despatched and served.
32. As seen from the intimation letter, it is not a rejection. On scrutiny of the application submitted for regularization, scrutiny authority found certain documents were not filed and necessary fee was not paid. Therefore, petitioners were asked to submit those documents and necessary penal charges. If the same was received, probably the petitioners could have submitted the documents required by the respondent corporation or could have asked for some other time or offered some explanation. They could have gone in appeal also. Such a course cannot be ruled out. Thus, it cannot be presumed, in the light of the contents of the said intimation notice that the petitioners deliberately kept quiet.
33. As fairly submitted by the learned standing counsel, several regularization applications submitted during the same period are yet to be disposed of for various administrative reasons and the scheme has not come to an end by 31.05.2013. Having regard to the peculiar facts of this case, it cannot be presumed that intimation notice dated 12.11.2008 were deemed to have been served and that the petitioners were aware of such intimation, more particularly, when the consequence of such presumption are grave and result in demolishing the constructions so made. As no intimation was given to petitioners on objections to process their building regularization applications, it is deemed that such applications submitted by the petitioners are pending. Since their building regularization applications are pending, no coercive action can be taken against them.
34. Having regard to the same the relief sought by the respondents 4 to 6 in W.P.No.4306 of 2015 cannot be granted and the same is liable to be dismissed.
35. W.P.No.16690 of 2015 is disposed of with the following directions:
i) Since the petitioners are now in receipt of intimation notice dated 12.11.2008, petitioners shall submit the required documents and penalization charges as demanded in the said intimation notice within a period of three weeks from this date and on furnishing of such documents and payment of charges, if the authorities are satisfied that the required documents are furnished, the building regularization application of the petitioners shall be considered and appropriate orders be passed as warranted by law within further period of three weeks. Till the orders are passed, as directed above, the notice issued under Section 636 of the Act shall be kept in abeyance and no coercive action shall be taken against petitioners.
36. Thus, W.P.Nos.1470 and 4306 of 2015 are dismissed and W.P.No.16690 of 2015 is disposed of accordingly. There shall be no order as to costs.
Miscellaneous petitions if any pending in these writ petitions shall stand closed.
__________________________ JUSTICE P.NAVEEN RAO Date : 14.08.2015