Telangana High Court
Classic Residency Owners Welfare ... vs Greater Hyderabad Municipal ... on 9 June, 2025
Author: K. Lakshman
Bench: K. Lakshman
HON'BLE SRI JUSTICE K. LAKSHMAN
WRIT PETITION Nos.19501 OF 2009 AND 8913 OF 2015
COMMON ORDER:
Heard Mr. Botla Venkateswar Rao, learned counsel representing Mr. M.V. Durga Prasad, learned counsel for the petitioner in W.P. No.19501 of 2009 and respondent No.4 in W.P. No.8913 of 2015; Mr. Raparthi Venkatesh, learned Standing Counsel for GHMC, Mr. K.G. Krishna Murthy, learned Senior Counsel representing Mrs. K. Kiran Mayee, learned counsel for respondent Nos.3 and 4 in W.P. No.19501 of 2009 and the petitioner in W.P. No.8913 of 2015, Mr. V. Rohith, learned counsel for respondent No.5 in both the writ petitions and Mr. R. Vinod Reddy, learned Standing Counsel for TS Transco appearing on behalf of respondent No.6 in W.P. No.19501 of 2009.
2. Lis involved in both the writ petitions is common and, therefore, both the matters were heard together and are being disposed of by way of this common order.
3. M/s. Classic Residency Owners Welfare Association (for short 'M/s. CROW Association') is the petitioner in W.P. No.19501 of 2009 and respondent No.4 in W.P. No.8913 of 2015, whereas Greater Hyderabad Municipal Corporation (GHMC) is arrayed in both the writ 2 KL,J W.P. Nos.19501/09 & 8913/15 petitions and respondent No.3 in W.P. No.19501 of 2009 is the writ petitioner in W.P. No.8913 of 2015 while M/s. Paramount Builders (for short 'Builder') is respondent No.5 in both writ petitions. T.S. Transco is arrayed as respondent No.6 in W.P. No.19501 of 2009, but not made in W.P. No.8913 of 2015. Therefore, to avoid confusion, the parties are hereinafter referred to as they are arrayed in W.P. No.19501 of 2009.
4. M/s. CROW Association filed W.P. No.19501 of 2009 to declare the inaction of GHMC on the complaint dated 06.07.2009 filed by it against illegal and unauthorized constructions made by the Builder as illegal and also sought for a consequential direction to the GHMC not to regularize the unauthorized and illegal construction made over and above the 5th floor, whereas, respondent No.3 (purchaser) filed W.P. No.8913 of 2015 to declare the notice dated 23.03.2015 issued by the GHMC, as illegal.
W.P. No.19501 OF 2009:
5. It is the specific contention of M/s. CROW Association that respondent No.5 is the builder of the subject property i.e., 1133 square yards in Survey Nos.35 and 36 (Part), situated at Upparpally Village, Rajendranagar Mandal, Rangareddy District and Mr.Ahmed Pasha Quadri is the absolute owner and possessor of the said property. He and 3 KL,J W.P. Nos.19501/09 & 8913/15 others have obtained permission vide Lr.No.12268/P4/H/04, dated 25.04.2005 from HUDA for construction of Stilt + 5 Upper Floors. The said Ahmed Pasha Quadri and others entered into Development Agreement with respondent No.5 builder for construction over the subject property. Respondent No.5 contended that it has obtained permission for construction of apartment from the then Rajendranagar Municipality vide proceedings No.24/NCR/438/2005-06, dated 20.05.2005. The same is valid for only three (03) years i.e., 19.05.2008. It has constructed the building and members of M/s. CROW Association purchased the same.
6. Subsequent to the sale and handing over possession of the subject property to the members of M/s. CROW Association, respondent No.5 builder made construction over and above the 5th floor i.e., on the terrace and sold them to respondent Nos.3 and 4. The said construction over and above the 5th floor is contrary to the permission obtained by respondent No.5 builder and owners of the property from the then Rajendranagar Municipality and HUDA. It is an unauthorized construction.
7. It is also the specific contention of M/s. CROW Association on account of construction made by respondent No.5 builder over and above 4 KL,J W.P. Nos.19501/09 & 8913/15 the 5th floor, height of the apartment has crossed above 18 meters, thereby attracting the provisions of the Andhra Pradesh Fire Services Act, 1999. Thus, the said construction over and above the 5th floor is illegal and sale of flats in favour of respondent No.3 is also illegal. Respondent No.4 is the brother of respondent No.3 and residing in the said flat. Therefore, M/s. CROW Association has submitted a representation dated 06.07.2009 to respondent No.2 with a request to take action against respondent Nos.3 and 4 in accordance with law. Despite receiving and acknowledging the said representation, respondent No.2 did not act upon the same. Thus, aggrieved by the said inaction of respondent No.2, M/s. CROW Association filed the present writ petition.
8. It is also the specific contention of M/s. CROW Association that it also submitted a representation to respondent No.6 - TS TRANSCO to disconnect power supply obtained by respondent Nos.3 and 4 and the same was also not considered.
W.P. No.8913 OF 2015:
9. Respondent No.3 had filed a writ petition vide W.P. No.8913 of 2015, to declare the notice dated 23.03.2015 issued by the Assistant City Planner, GHMC, as illegal. According to him, he purchased Flat No.601, 6th floor of the said apartment under a registered sale deed 5 KL,J W.P. Nos.19501/09 & 8913/15 bearing document No.6837 of 2007 executed by respondent No.5 builder. He is also doing business in the said flat. It is his specific contention that the said sale deed was executed in his favour before execution of sale deeds in favour of Members of M/s. CROW Association. Therefore, M/s. CROW Association is aware of the said construction and purchase of the same by him.
10. It also the specific contention of respondent No.3 that he has submitted an application vide No.BPS/41/VI/SZ/2008 seeking regularization of subject flat in terms of G.O.Ms.No.901, MA, dated 31.12.2007 and amended G.O.Ms.No.112, MA dated 31.01.2008. On receipt of the said application, the Deputy Commissioner, Rajendranagar Circle-VI, GHMC, has issued intimation notice dated 12.12.2008 with a request to pay an amount of Rs.38,250/- towards regularization charges. In compliance with the said intimation letter, respondent No.3 had paid the said amount vide demand draft bearing No.195984, dated 09.02.2009 of SBH, Budvel, Rangareddy District. The same is pending with the Deputy Commissioner, GHMC.
11. It is also the specific contention of respondent No.3 that during pendency of the said application, the Assistant City Planner, GHMC, has issued a notice dated 23.03.2015 on the complaint lodged by 6 KL,J W.P. Nos.19501/09 & 8913/15 M/s. CROW Association. In the said notice, it is specifically mentioned that M/s. CROW Association has submitted representations dated 23.03.2015 and 06.07.2009 stating that there is unauthorized construction of flat in 6th floor and seepage of water damaging the entire building due to watering the gardening on terrace area. The said construction was without a valid permission from GHMC. Therefore, the Assistant City Planner, GHMC directed respondent No.3, owner of Flat No.601, to stop the work forthwith and submit explanation within seven (07) days. Without submitting explanation, respondent No.3 had filed W.P. No.8913 of 2015 challenging the said notice contending that the application submitted by him seeking regularization is pending and he has paid Rs.38,250/- towards regularization charges. Therefore, issuance of notice dated 23.03.2015 is illegal.
12. Perusal of record would reveal that vide order dated 22.09.2009 in W.P.M.P. No.25465 of 2009 in W.P. No.19501 of 2009, this Court directed the GHMC not to regularize the alleged illegal structures raised on the 6th floor by the unofficial respondents under the Building Regularization Scheme until further orders. The said interim order is subsisting. Vide order dated 01.04.2015 in W.P.M.P. No.11746 of 2015 in W.P. No.8913 of 2015, this Court suspended the impugned 7 KL,J W.P. Nos.19501/09 & 8913/15 notice dated 23.03.2015 issued by the Assistant City Planner, GHMC. The said interim order is also subsisting.
13. It is the specific contention of the GHMC that due to the interim order in W.P. No.19501 of 2009, they are not in a position to process the application submitted by respondent No.3 seeking regularization of Flat No.601. It is the specific contention of M/s. CROW Association that the subject construction is unauthorized and, therefore, GHMC cannot regularize the same. Mr. Botla Venkateswar Rao, learned counsel for M/s. CROW Association, has placed reliance on the principle laid down by the Hon'ble Supreme Court in Rajendra Kumar Barjatya v. U.P. Avas Evam Vikas Parishad 1. ANALYSIS AND FINDINGS OF THE COURT:
14. In the light of the aforesaid rival submissions, it is relevant to note that Section - 452 (1) of the Greater Hyderabad Municipal Act (for short 'GHMC Act') deals with demolition or alteration of the building work unlawfully commenced, carried on or completed and appeal thereon. Section - 452-A of the GHMC Act deals with regularization of violation of floor area of Non-High rise Buildings. Section - 455A of the GHMC Act deals with regularization of buildings constructed without sanctioned plan. Section - 461 deals with power of Commissioner to 1 . 2024 SCC OnLine SC 3767 8 KL,J W.P. Nos.19501/09 & 8913/15 direct removal of person directing unlawful work. For better appreciation, the said provisions are extracted hereunder:
"452. (1) If the Commissioner is satisfied that the construction or re-construction of any building or execution of any work as described in section 433 is commenced or carried out contrary to the provisions of the Act or building rules or bye-laws made thereunder, he shall make a provisional order requiring the person who is constructing or re-constructing such building or executing such work or has constructed or re-constructed such building or executed such work to demolish such unauthorized construction or re-construction or work within a period specified to bring such construction or re-construction of the building or work in conformity with the provisions of the Act or building rules or Bye-laws made thereunder and may also direct that until the said order is complied with, the concerned person shall refrain from proceeding with, such construction or reconstruction of the building or work. (2) xxxxx (3) xxxxx (4) xxxxx (5) xxxxx (6) xxxxx (7) xxxxx (8) xxxxx (9) xxxxx"
"452-A. Any contravention of section 452 in respect of Non- High Rise Buildings may be regularised by the Commissioner or any officer authorised by the Commissioner in this behalf to the extent of violated floor area made to the setbacks on each side of each floor except building line upto ten percent of the 9 KL,J W.P. Nos.19501/09 & 8913/15 permissible setbacks, on payment of fine equivalent to one hundred percent of the value of the land as fixed by the Registration Department applicable at the time of regularisation in respect of violated floor area subject to the condition that sanctioned plan has already been obtained in each case."
"455-A. The Commissioner may regularise constructions made without obtaining sanctioned plan, subject to fulfilling the following conditions:-
(a) submission of building plans to the competent authority duly paying all categories of fee and charges;
(b) 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 318Telangana Fire Service Act, 1999 and the National Building Code are satisfied;
(c) 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."
"461. (1) If the Commissioner is satisfied that the erection or re-erection of any building or the execution of any such work as is described in section 433 has been unlawfully commenced or is being unlawfully carried on upon any premises he may, by written notice, require the person directing or carrying on such erection or re-erection or execution of work to stop the same forthwith.10
KL,J W.P. Nos.19501/09 & 8913/15 (2) xxxxx (3) xxxxx (4) xxxxx"
15. As per Section - 4 (4) of the Telangana Apartment (Promotion of Construction and Ownership) Act, 1987, an apartment may be transferred by the promoters to any person only after obtaining the required certificate of completion and the certificate of fitness for occupation from the local authority concerned.
16. As per Section - 13 (1) of the Telangana Fire Service Act, 1999, any person proposing to construct a building of more than 15 meters height for commercial/business purpose, 18 meters and above height for residential purpose, and buildings of public congregation like schools, cinema halls, function halls, religious places, which are more than 500 Sq. Meters in plot area or 6 meters and above in height shall apply to the Director General or any member of the service duly authorized by him in this behalf, before submission of such building plans to the authority or officer competent to approve the same under the relevant law, for the time being in force, for a no objection certificate along with such fee as may be prescribed.
17. In Rajendra Kumar Barjatya1, the Apex Court held that unauthorized construction without planning approval cannot be 11 KL,J W.P. Nos.19501/09 & 8913/15 encouraged. Paragraph No.19 is relevant and the same is extracted as under:
"19. In a catena of decisions, this Court has categorically held that illegally of unauthorized construction cannot be perpetuated. If the construction is made in contravention of the Acts / Rules, it would be construed as illegal and unauthorized construction, which has to be necessarily demolished. It cannot be legitimized or protected solely under the ruse of the passage of time or citing inaction of the authorities or by taking recourse to the excuse that substantial money has been spent on the said construction......"
18. There is no dispute that Flat No.601 was constructed by respondent No.5 builder in violation of the permission obtained by it. It has obtained permission for construction of Stilt + 5 Upper Floors. It has constructed the subject flat 601 over and above 5th floor unauthorizedly. It is an unauthorized construction. It is also the specific contention of respondent Nos.3 and 4 that respondent No.3 has purchased the subject flat before the Members of the M/s. CROW Association purchased their respective flats. They are aware of the said construction. Even then, they have submitted representation after two years.
19. It is the specific contention of M/s. CROW Association that on account of construction of flat over and above 5th floor, there is 12 KL,J W.P. Nos.19501/09 & 8913/15 seepage of water damaging the entire building due to watering the gardening on terrace area. Therefore, the same is illegal.
20. It is also relevant to note that vide order dated 26.11.2015 in W.P.No.19501 of 2009 this Court recorded the statement made by learned counsel for respondent No.5 that sale of flats by respondent No.5 to respondent No.3 is earlier than the sale of flats to the members of M/s. CROW Association. He has undertaken to file affidavit to the said effect and also documents. On 04.02.2016, M/s. CROW Association's counsel requested to file affidavit on the height of the subject building in support of his submission that it is high rise building and it is not covered by the BRS under Section - 452A of the GHMC Act. In compliance with the said order, M/s. CROW Association has filed W.P.M.P. No.5715 of 2016 in W.P. No.19501 of 2009 along with Certificate dated 09.02.2016 issued by a Civil Engineer stating that height of the subject building i.e., Classic Residency Apartments is 22.45 meters, which includes Stilt + 5 Upper Floors and a Pent House constructed over and above the 5th floor.
21. Admittedly, respondent No.3 has submitted application under BRS seeking regularization of Flat 601. The Deputy Commissioner has issued intimation letter dated 12.12.2008 requesting respondent No.3 to 13 KL,J W.P. Nos.19501/09 & 8913/15 pay an amount of Rs.38,250/- towards regularization charges. He has paid the said amount. The said application is pending.
22. It is the specific contention of the GHMC that they are not in a position to consider the said application submitted by respondent No.3 in view of interim order granted by this Court in W.P. No.19501 of 2009. Admittedly, the said application of respondent No.3 seeking regularization of subject flat is pending. During pendency of the said application, the GHMC cannot initiate proceedings under Sections - 452 and 461 of the GHMC Act. The GHMC has to decide the said application and thereafter subject to the result of the same, they have to take action against respondent No.3 as held by a Division Bench of High Court of Andhra Pradesh at Hyderabad. The representation dated 06.07.2009 submitted by M/s. CROW Association is also pending with the Deputy Commissioner, GHMC.
23. In the light of the aforesaid discussion, both the writ petitions are disposed of directing respondent No.1 - Commissioner, GHMC, to consider and dispose of the representation dated 06.07.2009 submitted by M/s. CROW Association and also the BPS application submitted by respondent No.3 vide File No.BPS/41/VI/SZ/2008, seeking regularization of subject Flat 601, strictly in accordance with law by 14 KL,J W.P. Nos.19501/09 & 8913/15 putting M/s. CROW Association and respondent No.3 on notice and affording them an opportunity of hearing. Subject to the result of same, the Commissioner, GHMC shall take action against respondent No.3 strictly in accordance with law. He shall also consider the principle laid down by the Apex Court in Rajendra Kumar Barjatya1. He shall complete the entire exercise within a period of eight (08) weeks from the date of receipt of copy of this order. In the circumstances of the case, there shall be no order as to costs.
As a sequel thereto, miscellaneous petitions, if any, pending in both the writ petitions shall stand closed.
_________________ K. LAKSHMAN, J 9th June, 2025 Mgr