Telangana High Court
Muzammil Ali Khan vs The Commissioner on 4 February, 2021
Author: A.Abhishek Reddy
Bench: A.Abhishek Reddy
THE HON'BLE SRI JUSTICE A.ABHISHEK REDDY
WRIT PETITION No.18784 of 2020
ORDER:
This writ petition is filed with the following prayers:-
"(a) To declare the inaction of the respondents in initiating any steps to remove unauthorisedly raised columns for the ground floor at premises No. 2-3-744/A, situated at Ashok Nagar, Golnaka, Amberpet, Hyderabad in terms of the notice under Section 636(1) of HMC Act, 1955 in File No. 744/ACP/TPS/Cir.16/NZ/GHMC/2019, dated 26.08.2019 as illegal, bad, unjust, unfair and violative of Article 300A of the Constitution of India and
(b) To direct the respondents to take immediate action in removing the unauthorized structures raised in premises bearing No. 2-3-744/A, situated at Ashok Nagar, Golnaka, Amberpet, Hyderabad and to protect the easementary rights of the petitioner for his residential house bearing H.No. 2-3-744/B, situated at Ashok Nagar, Golnaka, Amberpet, Hyderabad...."
Subsequent to filing of the writ petition, by way of I.A. No. 2 of 2020, the petitioner got impleaded the owners of the property in question as respondent Nos. 4 to 8.
It is the case of the petitioner that the ingress and egress to his residential house is through the road abutting from the house bearing No. 2-3-744/A, owned by respondent Nos. 4 to 8. The respondent Nos. 4 to 8, in the process of constructing a new house by demolishing the old house, have started making unauthorized and illegal constructions encroaching the public road, thereby affecting easementary rights of the petitioner. The learned counsel for the petitioner contends that pursuant to the complaint of the petitioner, the official respondents had issued a show-cause notice under Sections 452(1) & 461(1) of HMC Act, 1955 on 17.07.2019 followed by second notice under Section 452(2) of the Act on 06.08.2019. However, having not satisfied with the reply of the unofficial respondents, the official respondents had issued another notice under Section 636(1) of the Act on 26.08.2019 directing them to remove the unauthorized constructions. Immediately, the unofficial respondents had filed a suit in O.S. No. 1972 of 2019 on 2 the file of VI Junior Civil Judge, City Civil Court, Hyderabad and successfully dragged the matter. However, I.A. No. 1962 of 2019 filed therein, seeking interim injunction, was dismissed on 07.09.2019. Although the petitioner had made a representation to the official respondents on 28.11.2019 intimating them about the dismissal of the said I.A., so far, no action has been taken against the illegal constructions being made by respondent Nos. 4 to 8.
The official respondent Nos. 1 to 3 have filed a compliance report on 19.01.2021 stating that pursuant to the orders passed by this Court on 16.11.2021, the petitioner as well as the respondent Nos. 4 to 8 were put on notice; hearing was conducted on 14.12.2020; as the petitioner failed to submit any ownership documents, the respondent Corporation has passed the orders on 21.12.2020 by duly serving the same on both the parties. Further, pursuant to the complaint of the petitioner dated 24.01.2020, the respondent Corporation had stopped the constructions and as per their directions, the unofficial respondents demolished the RCC columns that were unauthorizedly raised by them prior to the issuance of the building permission.
The unofficial respondent Nos. 4 to 8 filed a counter affidavit stating that there is a valid permission granted by the official respondents and that they are not making any constructions by encroaching upon the road as alleged by the petitioner. By way of filing a memo, dated 24.12.2020, the respondent Nos. 4 to 8 have produced the copy of the permission granted by the official respondents in respect of the property in question. The learned counsel has stated that the allegation that these respondents are making constructions by encroaching the public road is false and baseless and stated that the passage forms part and parcel of the 3 entire structure. The remedy available to the petitioner is to approach the civil court if he is complaining about any of his easementary rights being affected, but not by way of approaching this court under Article 226 of the Constitution of India and therefore, prayed for dismissal of the writ petition.
Heard the learned counsel for the petitioner, the learned Standing Counsel for the official respondents and the learned counsel appearing for the respondent Nos. 4 to 8. Perused the material available on record.
The material available on record discloses that necessary building permission has already been granted by the GHMC in favour of respondent Nos. 4 to 8 vide permit No 3/C16/09734/2020, dated 10.09.2020. Further, pursuant to the orders passed by this Court on 16.11.2020, both the petitioner as well as the unofficial respondents were put on notice and a hearing was conducted by the respondent Corporation, but as alleged by the official respondents, the petitioner did not submit any ownership documents. After hearing both the parties, the official respondents disposed of the representation of the petitioner holding that the allegation of the petitioner regarding road encroachment on southern side is totally false and baseless. However, considering the subsequent complaint/representation of the petitioner, dated 24.01.2020, the official respondents have stopped the construction of the unofficial respondents and as per the directions of the authorities, the unofficial respondents have also demolished the RCC columns that were unauthorisedly raised by them. Therefore, the main grievance of the petitioner has already been redressed. The petitioner has not challenged the building permission granted in favour of the respondent Nos. 4 to 8 and in the absence of any 4 challenge to the same, or it being set aside, the construction cannot be termed as unauthorised or illegal. With regard to the other allegations raised by the petitioner that the respondent Nos. 4 to 8 have illegally encroached the public road and constructed the building contrary to the sanctioned plan, this Court is not inclined to deal with them as they involve disputed questions of fact. Whether the passage which is alleged to have been grabbed in a public road or part and parcel of the earlier structure are all matters which have to be decided by a competent civil court after the parties leading evidence, but this Court cannot decide the same under Article 226 of the Constitution of India. If the petitioner is so advised, he is at liberty to approach the civil court with regard to his easementary rights over the alleged common passage. It is also made clear that the official respondents are under obligation to see that any constructions made by the unofficial respondents are strictly in accordance with the sanctioned plan. In case, any deviations are found, they are duty bound to take necessary action strictly in accordance with law duly putting the parties on notice.
With the above observations, the writ petition is dismissed. Miscellaneous petitions pending in this writ petition, if any, shall stand closed. There shall be no order as to costs.
________________________ A.ABHISHEK REDDY, J Date :04-02-2021 Tsr