Telangana High Court
Saranga Krishna Murthy vs Greater Hyderabad Municipal ... on 30 August, 2022
THE HON'BLE THE CHIEF JUSTICE UJJAL BHUYAN
AND
THE HON'BLE SRI JUSTICE C.V.BHASKAR REDDY
W.A.No. 397 of 2022
JUDGMENT:(Per the Hon'ble the Chief Justice Ujjal Bhuyan) Heard Mr. Vivek Jain, learned counsel for the appellant; Mr. N.Ashok Kumar, learned Standing Counsel for Greater Hyderabad Municipal Corporation (GHMC) appearing for respondents No.1 and 2; and Mr. Pramod Singh, learned counsel representing Mr. Aadesh Varma, learned counsel for respondents No.3 to 5.
2. This intra-court appeal is directed against the order dated 09.06.2022 passed by the learned Single Judge dismissing W.P.No.28851 of 2013 filed by the appellant as the writ petitioner.
3. In the related writ petition, appellant as the writ petitioner had assailed the legality and validity of the notice dated 27.09.2013 issued by respondent No.1 under Section 456 of the Hyderabad Municipal Corporation Act, 1955 (now Greater Hyderabad Municipal Corporation Act, 1955) (briefly 'the Act' hereinafter).
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4. Before adverting to the order of the learned Single Judge, we may briefly advert to the notice dated 27.09.2013 issued by respondent No.1, which reads as under:
It is reported that the House bearing H.No.15-6- 220, situated at Begum Bazar, Hyderabad is in dangerous & dilapidated condition and likely to collapse at any moment causing danger to the lives of the inmates of the House/surrounding House and the public passing through the road/lane on the front /sides of the said building.
In this case, the Executive Engineer, Zone-II, GHMC have inspected the site and informed that the structures and the walls are having number of cracks and the structure is in dilapidated condition and need to be demolished.
You are therefore, directed the owner/occupier of the said structure to initiate the action U/s, 456 of the HMC Act. 1955 by demolishing the structure within 24 hours. Since, the structure is in dangerous condition and it may collapse at any moment causing danger to the inmates/neighbors and any other problems created due to the sold dilapidated structure and the expenses incurred will be recovered in terms of section 641 of the HMC Act, 1955 by you by paying compensation to any person who sustains damage or to any neighboring building by the ::3::
execution of the said work. Further, in your representation you have submitted/stated that you submitted application to JNTU on 27-07-2013, but till date you have not submitted any Structural Stability Certificate to this office from JNTU. Hence, this office is going to take further action against the dilapidated Building.
5. By the aforesaid order (which was issued in the form of notice), petitioner was informed that house bearing H.No.15-6-220 situated at Begum Bazar, Hyderabad (for short 'the subject property') was in a dangerous and dilapidated condition, which was likely to collapse at any moment causing danger to the lives of the inmates of the house and neighbouring houses as well as the public passing through the road in front of the subject property. It was mentioned therein that Executive Engineer, Zone-II of GHMC had inspected the site whereafter, he reported that the subject property was having number of cracks; the structure was in a dilapidated condition; and it was required to be demolished. Appellant being the tenant (occupier of the subject property) was directed to initiate action under Section 456 of the Act by demolishing the structure within 24 hours.
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6. Contention of the appellant was that the subject property was not required to be demolished and it could be repaired, which exercise could be carried out by the appellant himself. There is a civil dispute between the appellant and the owners, who are respondents No.3, 4 and 5. Earlier W.P.No.26168 of 2013 was filed by an unknown person for demolition of the subject property. Competent authority of Jawaharlal Nehru Technological University (JNTU) had given a report stating that only the first floor was in a dilapidated condition.
7. Status quo order was granted by the learned Single Judge on 29.10.2013. Subsequently, the status quo order was vacated on 23.12.2021 against which W.A.No.675 of 2021 was filed, which was disposed of on 26.04.2022. While disposing of the said appeal, Division Bench observed that a report was also obtained from the Indian Institution of Technology, Hyderabad (IIT), which was on record. Learned Single Judge was requested to hear and decide the writ petition itself with liberty to consider the report submitted by IIT.
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8. The writ petition was contested by respondents No.1 and 2 by filing counter-affidavit and additional counter-affidavit. Impugned notice dated 27.09.2013 was justified. Owners of the building had obtained certificate from JNTU dated 11.10.2013 to the effect that the subject property was in a dilapidated condition being beyond repairs.
9. Learned Single Judge considered the report submitted by JNTU as well as the report of IIT whereafter, the writ petition was dismissed by order dated 09.06.2022 in the following manner:
Registry has placed before this Court the structural stability report issued by the Indian Institute of Technology, Hyderabad wherein it is mentioned that the structure is currently stable but is not suitable for continued use without extensive repair and strengthening and the likely danger to the occupants of the structure comes from the potential collapse of the roof slab. The slab can collapse if any additional loads are placed on the roof slab or the support system of the slab is disturbed in any way. The structure in its current state does not pose a risk to anyone outside the building if it is not tampered with or disturbed. In the adjacent structure, there is ::6::
debris hanging from the partially demolished structure, which poses immediate danger to passers- by. It is also observed that there appears to be some additions done at the first floor level, which is more recent. It is also stated that in its current state, there is extensive damage to the slab of the subject building. The walls supporting the slab are intact and are of adequate capacity. Further, it is observed that the slab is at the risk of cracking and eventually collapsing. This condition may be exacerbated by any construction or demolition activity in the immediately abutting structures. Along with the report, the Institute has also submitted several photographs. It appears that in view of the civil disputes between the petitioner and the owners of the property and other third parties at any cost, the petitioner wants to retain his possession. After obtaining status quo orders, the petitioner started making alterations or modifications to the structure, which is evident from the notice issued to him by the Corporation as well as the report of the IIT, Hyderabad. In the photographs, it is shown that all the adjacent buildings were also damaged/demolished and the debris is found everywhere and both the Corporation authorises, Executive Engineer as well as IIT also of the view that there is likely danger to the occupants of the structure from the potential collapse of the roof slab.
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For the personal benefit of the petitioner or for the sake of the civil litigation, the lives of the public at large cannot be put to risk and the petitioner cannot be permitted to live in the said premises. Admittedly an order is passed in Writ Petition No. 26168 of 2013 to remove the structures after following the due process. The photographs which are filed along with the report of the IIT, Hyderabad and also the report of the Executive Engineer, JNTU show that the adjacent buildings are already pull down and the debris is hanging from the partially damaged structure. The slab of the petitioner's building is at the risk of cracking and eventually collapsing. The condition may be exacerbated by any activity of construction or demolition in the immediate structures. As the debris is hanging in the adjacent building even the said activity will have an impact on the stability of this building. The larger public interest and safety is always the paramount consideration. Hence, this Court finds no reason to interfere with the notice issued under Section 456 of the Act on 27.09.2013."
10. When this appeal was filed, notice was issued on 20.06.2022 and in the meanwhile, status quo was directed to be maintained. Subsequently, on 04.07.2022, this Court appointed Ms. K.Mamata ::8::
Choudhary, a learned counsel of this Court as the Advocate-
Commissioner, who was called upon to physically inspect the subject property and thereafter to submit report. On the next date i.e., on 19.07.2022, learned Advocate Commissioner submitted a report, which was made available to the respective parties.
11. As per the report of the learned Advocate Commissioner, she had inspected the subject property on 18.07.2022. Appellant is a tenant and conducts wholesale trade in edible oils from the subject property. Though from the outside, the subject popery appears to be a standalone unit, as a matter of fact, it forms part of a building housing multiple commercial units. As per appearance of the building, it can be anywhere between 70 to 100 years old. While the interior of the subject property appears to be maintained, there are damp portions on the wall presumably due to seepage of water from the roof and the holes in the ceiling, which are considerable in size. In the year 2013, most of the building including the roof of the ground floor/floor of the first floor was demolished by the GHMC except for terrace and subject property.
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The roof of the subject property was also found punctured at a number of places, which has been temporarily covered by the appellant by way of plastic sheets. Terrace of the building was demolished in the year 2021 thereby exposing the roof of the subject property to the sky. There is only a precarious access from the stairs to the roof, which can be accessed through a makeshift ladder through the hole in the roof. There is dampness seeping in from the ceiling. Window on the common wall of the subject property was partly demolished in December, 2021, which was found covered with a plastic sheet. According to the learned Advocate Commissioner, in the report of the JNTU, it has been highlighted that the continued use of the structure would be dangerous. IIT has opined that extensive repair would be required for any long term use.
12. Learned Advocate Commissioner had taken photographs and a video of the premises, which have been placed before us.
13. We have also perused the photographs taken by the learned Advocate Commissioner wherefrom it is clearly visible that the ::10::
subject property stands in a very precarious condition with demolitions all over.
14. At this stage, we may refer to Section 456 of the Act, which is as under:
456. Removal of structures, trees etc., which are in ruins or likely to fall:--
(1) If it shall at any time appear to the Commissioner that any structure (including under this expression any building, wall, parapet, payment, floor, steps, railings, door or window frames or shutters or roof, or other structure and anything affixed to or projection from or resting on, any building, wall, parapet or other structure) is in ruinous condition or likely to fall, or is in any way dangerous to any person occupying, resorting to or passing by, such structure or any other structure or place in the neighbourhood thereof, the Commissioner may, by written notice, require the owner or occupier of such structure to do one or more of the following things, namely:--
i) to pull down,
(ii) to secure,
(iii) to remove, or
(iv) to repair such structure or thing, and to prevent all cause of danger therefrom. (2) The Commissioner may also, if he thinks fit, require the said owner or occupier by the said notice, either ::11::
forthwith or before proceedings to pull down, secure, remove or repair the structure or things, to set up a proper and sufficient hoard or fence for the protection of passers-by and other persons, with a convenient platform and hand-rail, if there be room enough for the same the Commissioner shall think the same desirable, to serve as footway for passengers outside of such hoard or fence.
(3) If it appears to the Commissioner that the danger from a structure, which is ruinous or about to fall is imminent, he may, before giving notice as aforesaid or before the period of notice expires, fence off, take down, secure or repair the said structure or take such steps or cause work to be executed as may be required to arrest the danger.
(4) Any expenses incurred by the Commissioner under sub-section (3) shall be paid by the owner or occupier of the structure.
(5) (a) Where the Commissioner is of opinion whether on receipt of an application or otherwise that the only or the most convenient means by which the owner or occupier of structure such as is referred to in sub-section (1) can pull down, secure, remove or repair such structure, is by entering any of the adjoining premises belonging to some other person the Commissioner after giving such person a reasonable opportunity of stating any objection may, if no such objection is raised or if any objection which is raised appears to him invalid or insufficient, by an order in ::12::
writing, authorise the said owner or occupier to enter such adjoining premises.
(b) Every such order bearing the signature of the Commissioner shall be a sufficient authority to the person in whose favour it is made, or to any agent or person employed by him for this purpose, after giving to the owner of the premises reasonable written notice of his intention so to do, to enter upon the said premises with assistants and workmen, at any time between sunrise and sunset, and to execute the necessary work.
(c) In executing, any work under this section as little damage as possible shall be done to the adjoining owner's property, and the owner or occupier of premises for the benefit of which the work is done, shall--
(i) cause the work to be executed with the least practicable delay;
(ii) pay compensation to any person who sustains damage by the execution of the said work.
15. As per subsection (1) of Section 456 of the Act, if, at any time, it appears to the Commissioner that any structure is in ruinous condition or is likely to fall, or is in any way dangerous to any person occupying, resorting to, or passing by such structure or any other structure or place in the neighborhood thereof, the Commissioner may, by written notice, require the owner or ::13::
occupier of such structure to do one or more of the following things, namely:-
1. To pull down;
2. To secure;
3. To remove; and
4. To repair such structure or thing and to prevent all cause of danger therefrom.
16. Learned counsel for the appellant has laid emphasis that Commissioner had four options including calling upon the appellant to repair the structure and to prevent all cause of danger therefrom.
17. However, we are of the view that since Commissioner, on the basis of the materials on record, had arrived at a decision that having regard to the dilapidated condition of the subject property, the same is required to be demolished to prevent damage or injury to neighbouring structures and persons, we would not like to substitute those with that of ours. It is trite that in a proceeding of judicial review, the Court is primarily concerned with the decision making process and not with the decision per se.
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18. Having gone through the material papers, we do not find that the decision making process suffers from any procedural infirmity or illegality to warrant interference under Article 226 of the Constitution of India. We therefore, uphold the order of the learned Single Judge.
19. However, having regard to the long stay of the appellant in the subject property, we grant thirty days' time to him to vacate the said premises.
20. Subject to the above, the writ appeal is dismissed. No costs.
As a sequel, miscellaneous petitions, pending if any, stand closed.
__________________ UJJAL BHUYAN, CJ _______________________ C.V.BHASKAR REDDY, J Date: 30.08.2022 LUR