Telangana High Court
The Hyderabad Institute Of Oncology ... vs State Of Telangana on 11 September, 2023
Author: T. Vinod Kumar
Bench: T. Vinod Kumar
THE HON'BLE SRI JUSTICE T. VINOD KUMAR
Writ Petition No.25106 of 2023
ORDER:
This Writ Petition is filed seeking a Writ of Mandamus to declare the inaction of the respondents in removing unauthorized and illegal construction of the wall in the setback area on the southern side of the property bearing No.8-2-293/82/82/L/276/A situated at Road No.12, Banjaraja Hills, Hyderabad, as illegal, arbitrary, unjust and violative of Articles 14 and 21 of the Constitution of India, Rules 5 and 6 of G.O.Ms.No.168, MA dated 07.04.2012 and Section 452 of the Greater Hyderabad Municipal Corporations Act, 1955 (for short, 'the GHMC Act') and consequently, direct respondent No.2 to remove/demolish such unauthorized and illegal construction of wall in the setback area on the southern side of the property in question.
2. Heard learned counsel for the petitioners, learned Government Pleader for Municipal Administration and Urban Development appearing for respondent No.1 and Mr.K.Siddhartha Rao, learned Standing Counsel appearing for respondent No.2. Since, the Writ Petition is taken up for hearing and disposal at the stage of admission, notice to respondent No.3 is felt unnecessary.
3. The grievance of the petitioners is that respondent No.3 is making unauthorized construction of a compound wall in the setback area by 2 encroaching on to the petitioners' land on the south side of the property bearing No.8-2-293/82/82/L/276/A situated at Road No.12, Banjaraja Hills, Hyderabad; and that aggrieved by such unauthorized construction, petitioners had approached concerned authorities, particularly respondent No.2, and submitted their representation dated 07.06.2023. It is further contended that though the respondents issued a notice dated 20.06.2023, no action has been taken pursuant to the same. Thus, it is contended that the respondents are to be commanded by issuance of a Writ of Mandamus to take further action in terms of the said notice.
4. Per contra, learned Standing Counsel appearing on behalf of respondent No.2 submits that on receipt of the complaint from the petitioners, the respondents-authorities have initially issued a notice on 13.06.2023. Thereafter, another notice dated 20.06.2023 was issued whereby the unofficial respondent was called upon to submit explanation with regard to the unauthorized construction/deviations. The contents of the said notice reads as under:
"With reference to the subject cited, this office has received a complaint vide 1st cited stating that the owner of Plot No.274A, Road no.12 has encroached into Plot No.274A & 277A setback area to an extent of 35'-0"*5'-0" and have made illegal construction of shed in deviation to the sanctioned plan. In this regard, the site has been inspected and whereas the personnel available at the site have not allowed the staff of GHMC to enter the premises and inspect the site. 3
In this regard this office staff has inspected the premises from the backside neighbouring building and noticed that you have erected a shed in the rear setback area vide ref 4th cited this office has issued a letter requesting to submit the sanction plan & relevant documents to a certain the veraciting of the complaint whereas you have not submitted any reply to the above notice.
Therefore, you are hereby directed to show cause by a written statement in person or by an agent duly authorized by you in this behalf or by appearing before the Deputy Commissioner/Nodal Officer, within (7) days from the date of receipt of this notice, why the action should not be initiated against the above unauthorized construction & deviations by way of removing, altering or pulling down. Failing which necessary action will be initiated for filing prosecution in Court of law/imposing penalties / sealing the property / removing, altering or pulling down as per provisions made under TS-bPASS Act and GHMC Rules against the unauthorized construction 7 deviations made by you.
Details with status of the deviations and unauthorized construction made by Mrs.Ch.Meena Kumari, as per the ground position on the date of issue of this notice as given below:
1. Unauthorized construction of sheds in the set back area.
2. Unauthorized construction of rooms in stilt parking floors, which is meant for parking only."
5. Learned Standing Counsel further submits that the unofficial respondent No.3 had submitted her explanation to the notice dated 13.06.2023, which coincided with the notice issued on 20.06.2023; that as per the reply of respondent No.3, it is stated that she had made construction by obtaining permission and was also issued with Occupancy Certificate dated 27.08.2020, which have been enclosed to the said letter; and that 4 there are inter se disputes between the petitioners and respondent No.3 with regard to the termination of tenancy of respondent No.3's building and in order to settle their civil disputes, the petitioners as well as respondent No.3 are unnecessarily dragging the official respondents, including the police authorities, into the said dispute by making complaint against one another.
6. I have taken note of the respective contentions urged.
7. Admittedly, the building of respondent No.3 had been taken on lease by the petitioners, which is adjacent to its existing medical facilities for its usage. Further, upon taking lease of respondent No.3's property, the compound wall which separated both the properties was demolished and thus, the properties have become contiguous and had been put to use.
8. Further, it is after termination of the lease of the said property between the parties that the petitioners started making complaints and had also approached this Court on an earlier occasion by filing W.P.No.20242 of 2021 which is stated to be pending. It is also pertinent to note that the petitioner seems to have approached the respondents-authorities and made complaint regarding an alleged unauthorized construction and in deviation of the sanctioned plan.
9. That apart, the relief that has been sought for by the petitioners in the present Writ Petition is also with regard to the unauthorized construction of wall in the setback area by the unofficial respondent, which indicates that the 5 claim of the petitioners is that respondent No.3 is proceeding with the construction of compound wall by encroaching into in the setback area on the southern side of the property. If that be the claim of the petitioners, the appropriate forum to injunct/restrain the unofficial respondent from proceeding with the construction by encroaching into the property of the petitioner is the competent civil Court having jurisdiction over the area. This Court, in exercise of powers under Article 226 of the Constitution of India cannot take up the exercise of resolving title/boundary dispute between the parties by taking on to itself the identification, demarcation/localization of the properties.
10. If the petitioners are aggrieved by the action of respondent No.3 of encroaching on to the petitioners' property, the petitioners have to approach the concerned Court of civil jurisdiction as noted above and cannot seek to invoke the jurisdiction of the respondents, particularly respondent No.2, in purported exercise of powers under Section 452 of the GHMC Act.
11. In view of the conclusions arrived at as above, this Court is of the considered view that the Writ Petition is misconceived and it is accordingly dismissed. No order as to costs.6
Miscellaneous petitions, if any, pending in this writ petition shall stand closed. No order as to costs.
___________________ T. VINOD KUMAR, J Date:11.09.2023 GJ 7 THE HON'BLE SRI JUSTICE T. VINOD KUMAR Writ Petition No.25106 of 2023 11.09.2023 GJ