IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) TUESDAY, THE NINTH DAY OF SEPTEMBER TWO THOUSAND AND EIGHT PRESENT THE HON'BLE MR JUSTICE V.V.S.RAO WRIT PETITION Nos.14889 of 2003 and 20213 of 2004 WRIT PETITION NO : 14889 of 2003 Between: Chinnam Sudhakar S/o late Ch. Laxmaiah R/o H. No. 1-8-215, P.G. Road, Secunderabad ..... PETITIONER AND 1 Serilingampally Municipality rep by Commissioner, Serilingampally, Ranga Reddy district 2 The Hyderabad Urban Development Authority rep by Vice- Chairman, Begumpet, Hyderbad .....RESPONDENTS Petition under Article 226 of the constitution of India praying that in the circumstances stated in the Aﬃdavit ﬁled herein the High Court will be pleased to to issue an appropriate Writ ofMandmus or any other Writ, order or Direction by declaring the action of the ﬁrst respondent in Co. No. G/51/UC/MCS/111/2002 dated 2-7-2003/15-7-2003 as illegal, arbitary unjust reasonable withut jurisdition, opposed to Public Police, violative of principles ofnatural justice and also violative oﬀundamental rights guaranteed under Art 14, 21 300- a of Constitution of India and set Aside the same. Counsel for the Petitioner: SMT.K.SARALA MAHENDER REDDY Counsel for the Respondents: MR.R.TIMMA REDDY WRIT PETITION NO : 20213 of 2004 Between: Sri Khoday Goverdhan, S/o.K.Kishan Rao, R/o.13-2-784, Puranapool, Hyderabad. ..... PETITIONER AND 1 The Serilingampally Municipality, rep.by its Commissioner, Serilingampally, RR Dist. 2 Chinnam Sudhakar, S/o.Late Ch.Lakshmiah, R/o.1-8-215, Road, Secunderabad. .....RESPONDENTS Petition under Article 226 of the constitution of India praying that in the circumstances stated in the Aﬃdavit ﬁled herein the High Court will be pleased to issue a writ, order or directions particularly one in the nature of writ of Mandamus declaring the action of the 1st respondent in granting licence to the 2nd respondent for running a function hall in the premises bearing No.5-2/1 & 2, chandanagar village, Sherilingampally Municipality, R.R.District as illegal, arbitrary and violtive of Article 14 and 21 of the Constitution of India, the A.P.Municipalities Act, 1965 and the A.P.Urban Areas Development Act, 1975 and consequently restrain the 2nd respondent from using the said premises as a function hall and pass. Counsel for the Petitioner: MR.M.S.RAMCHANDRA RAO Counsel for Respondent No.1: Smt.Kalpane Ekbote Counsel for Respondent No.2: Smt. K.Sarala Mahender Reddy. The Court made the following Common Order: THE HON'BLE SRI JUSTICE V.V.S.RAO WRIT PETITION Nos.14889 of 2003 and 20213 of 2004 COMMON ORDER: As the controversy in these two cases requires consideration by common order, both the matters are taken up together and are being disposed of. The parties hereinafter are referred to as they are arrayed in ﬁrst writ petition, being W.P.No.14889 of 2003. W.P.No.14889 of 2003 is ﬁled questioning the proceedings of Serilingampally Municipality (ﬁrst respondent) now part of Greater Hyderabad Municipal Corporation (GHMC) dated 02/15.07.2003 whereby and whereunder the petitioner was directed to remove by demolition unauthorized construction of function hall in premises bearing door No.5-2/1, Chandanagar in Serilingampally Municipality, Ranga Reddy District. In this writ petition, owner of the property in the same locality got himself impleaded as third respondent, who ﬁled the other writ petition, being W.P.No.20213 of 2004 questioning the license granted by ﬁrst respondent to the petitioner. Petitioner’s case, in brief, is as follows. The petitioner obtained permission for construction of a commercial complex consisting of ground plus two ﬂoors. Permission was accorded by the Hyderabad Urban Development Authority (HUDA), second respondent, on 05.06.1989 which was also endorsed by ﬁrst respondent on 07.09.1989. The building so constructed was assessed to tax as door No.5-2/1. The petitioner also alleges that in 1999, he got regularized the deviations. He is also running a mini function hall in the building from 2001 thereabout. He alleges that he has provided suﬃcient parking place and that the hall, which can accommodate 100 to 150 persons, is used for functions which last for short durations and which do not cause any inconvenience to the neighbours. However, ﬁrst respondent in collusion with third respondent issued a notice dated 17.04.2003 calling upon the petitioner to produce necessary sanction plans etc, to which the petitioner submitted reply along with necessary documents. However, ﬁrst respondent issued a show cause notice on 10.06.2003 under Section 228(1) and (2) of the Andhra Pradesh Municipalities Act, 1965 (Municipalities Act, for brevity) and Sections 42(1) and 43(1) of the Andhra Pradesh Urban Areas (Development) Act, 1975 (Urban Development Act, for brevity) alleging that the petitioner unauthorisedly constructed M/s. Vijaya Laxmi Function hall in ﬁrst and second ﬂoors without providing parking space in violation of building rules and zoning regulations. The petitioner was called upon to show cause under the provisions referred to hereinabove as to why necessary action should not be taken against unauthorized construction. The petitioner submitted explanation on 21.06.2003. After receiving the same, ﬁrst respondent passed impugned order dated 02/15.07.2003. First respondent in his counter-aﬃdavit alleged that the petitioner obtained permission for construction of ground ﬂoor for commercial purpose and two upper ﬂoors for residential purpose, that even as per the regularized plan the ground ﬂoor is meant for shops and two upper ﬂoors for residential purpose and that the petitioner started function hall in the upper ﬂoors which is against the sanctioned regularized plan. Therefore, after following due process under Section 228 of Municipalities Act, ﬁnal order under Section 228(3) of Municipalities Act was passed by first respondent. The petitioner ﬁled reply aﬃdavit clarifying the position as follows. Petitioner’s father – C.Lakshmaiah is owner of plot No.1 admeasuring 1062 sq. mtrs. Petitioner’s brother – C. Prabhakar is owner of plot No.2 admeasuring 1028 sq. mtrs. Petitioner is owner of plot No.4 admeasuring 1230 sq. mtrs. All the plots are situated in survey No.360, Chandanagar. They obtained permission for construction of ground plus two ﬂoors commercial complex vide Hude Permit No.4536 dated 05.06.1989, for which first respondent also accorded permission on 07.09.1989. They completed three storeyed buildings which are commercial complexes. The petitioner constructed the building in 1998. This consists of shopping complex in the ground ﬂoor and residential houses/units in ﬁrst and second floors. As he did not obtain permission, subsequently obtained necessary regularisation vide orders dated 07.06.1999. In this the ground ﬂoor is shopping complex and ﬁrst and second ﬂoors are meant for residential purposes. The building was allotted door No.5-2/1. The petitioner further states that he obtained license to run mini function hall in 1989 from HUDA and ﬁrst respondent duly providing parking space in the cellar and in between complexes also towards Manjeera Road. Therefore, construction of mini function hall is not unauthorized construction. He also ﬁled O.S.No.289 of 2003 on the ﬁle of the Court of the Principal Junior Civil Judge, (West and South), Ranga Reddy District, against third respondent for demolition of illegal constructions of third respondent and that counter averments are not true. W.P.No.20213 of 2004 is ﬁled challenging the action of ﬁrst respondent in granting licence to the petitioner on the ground that running function hall in the locality is causing hardship by parking of vehicles in front of the shops of third respondent and others. It is also alleged that the petitioner made constructions in violation of the provisions of Municipalities Act and Urban Development Act and therefore, no license can be granted. This is opposed by the other side. Learned counsel for the petitioner submits that ﬁrst respondent passed impugned order 02/15.07.2003 without considering the record and therefore, the same suﬀers from mis-direction in law. While reiterating the petitioner’s position and contentions in the pleadings, he submits that the regularization as sought by the petitioner in 1999 was in respect of building constructed in plot No.4, for which he sought permission for construction of shops in ground ﬂoor and residential buildings/units in ﬁrst and second ﬂoors. Therefore, he would urge that the ﬁndings of ﬁrst respondent that the building/function hall was constructed in deviation of the plan is illegal. Nextly he submits that the petitioner commenced mini function hall after obtaining necessary license from ﬁrst respondent. He also contends that the petitioner is not running any function hall now. Learned standing counsel for GHMC and learned counsel for third respondent submit that the petitioner obtained permission for three storeyed building – ground ﬂoor for commercial shops, and ﬁrst and second ﬂoors for residential buildings. But he converted ﬁrst ﬂoor building as mini function hall in contravention of the building rules and zoning regulations. He also submits that when procedure under Section 228 of Municipalities Act is followed and the impugned order is passed after following the principles of natural justice, the writ petition is misconceived. The controversy in these writ petitions is whether ﬁrst respondent was justiﬁed in passing orders under Section 228(3) of Municipalities Act. Section 228 of Municipalities Act empowers the Commissioner to make a provisional order requiring the owner to demolish the work done if in the opinion of the said oﬃcer such building has been unlawfully constructed. Even where the construction or reconstruction of the building has been commenced without obtaining permission of the Commissioner or is being carried on in deviation of the approved plan, the provisional order shall be served on the owner calling upon him to show cause within reasonable time. After receiving explanation if the Commissioner is satisfied that there are unauthorized constructions or deviations as provided under Section 228(1) of Municipalities Act, he may make such order as binding on the owner. Section 228(1) of the Act itself provides that the Commissioner may pass orders requiring the owner to make alterations as may be necessary to bring the work into conformity with the Municipalities Act, rules and bye- laws made thereunder. In appropriate cases the builder can be refrained from proceeding further with construction work or direct the builder to demolish construction of the work which is in contravention of the provisions of Municipalities Act. Sections 42 and 43 of the Urban Development Act also contains similar provisions. The only diﬀerence is that under Section 42 of the Urban Development Act even where the development has been commenced or is being carried on or has been completed in contravention of the master plan or zonal development plan or without permission, demolition can be ordered. If it is shown that the petitioner constructed the premises bearing door No.5-2/1 (i) without permission, (ii) in deviation of the permission, and/or (iii) contrary to the zoning regulations, the Commissioner is entitled to initiate action under Section 228 of Municipalities Act and Sections 42 and 43 of the Urban Development Act. It is nobody’s case that the petitioner did not obtain permission at all. All the parties admit that the petitioner obtained permission from HUDA as well as ﬁrst respondent. The charge against the petitioner, however, is that he deviated from the building plan and constructed commercial complex when he obtained permission for construction of shops in ground ﬂoor and residential units in the upper two ﬂoors. The submission of learned standing counsel that the petitioner constructed commercial shops even in ﬁrst and second ﬂoors, which is deviation, cannot be accepted. A perusal of the impugned order and the show cause notice, which preceded it, would show that the construction made by the petitioner was regularized and he was called upon to show cause as to why he constructed function hall. In the impugned order, however, the contravention pointed out is unauthorized construction of function hall only. This itself would show that ﬁrst respondent is not clear as to exact contravention by the petitioner. The petitioner has placed before this Court the building permission permit No.4436/R4/HUDA/89 dated 05.06.1989 granted by Vice-Chairman of HUDA for construction of Balaji shopping complex in the land comprised in Chandanagar. This shows that three shopping complexes were constructed in plot Nos.1, 3 and 4 in the names of Laxmaiah (father of petitioner), Prabhakar (brother of petitioner) and petitioner himself. As noticed supra when the petitioner constructed another building of ground plus two ﬂoors in premises bearing door No.5-2/1, he did not obtain necessary permission. Later, he applied for building regularization which was accorded vide permit No.4-20/BRS/2264/98 dated 07.06.1999 after collecting an amount of one lakh and odd. This plan shows that the ground ﬂoor with plinth area of 6300 sq. ft. (585.28 sq. mtrs) is shops area and two upper ﬂoors are meant for four dwelling units in each ﬂoor. These two plans which have not been speciﬁcally denied would clinchingly show that ﬁrst respondent did not verify the entire record before issuing show cause notice to the petitioner which lead to impugned order. This is certainly mis- direction in law. Secondly while the show cause notice was issued alleging that the petitioner unauthorisedly constructed the building, the ﬁnal order was passed on the ground that the petitioner constructed mini function hall. These matters require further consideration by the appropriate authority as these may need personal inspection and veriﬁcation of the records. Therefore, this Court is not inclined to go into these matters any further. Insofar as the allegation of the respondents that the petitioner unauthorisedly started mini function hall is concerned, the same is belied by two receipts ﬁled by the petitioner along with the writ petition. The Xerox copies of the printed receipts would show that for the years 2002-2003 and 2003-2004 ﬁrst respondent collected an amount of Rs.3,000/- towards license fee for mini function hall from C. Vijaya Laxmi, wife of the petitioner. The learned counsel for third respondent opposes grant of license which itself would show that the petitioner was granted such license. Insofar as this aspect of the matter is concerned, now that the petitioner has stopped running mini function hall, this Court observes that if the petitioner seeks license for running mini function hall the same shall be granted only after taking into consideration facilities provided in the premises for parking, in accordance with Zonal Regulations of HUDA (now GHDA). In the result, for the reasons above, W.P.No.14889 of 2003 is allowed and the impugned order 02/15.07.2003 is set aside. The matter is remitted to Commissioner or Zonal Commissioner as the case may be, GHMC, for fresh consideration keeping in view observations made hereinabove. The petitioner (in W.P.No.14889 of 2003) shall be entitled to costs to be paid by ﬁrst respondent. W.P.No.20213 of 2004 is disposed of recording the statement of the learned counsel for the petitioner (in W.P.No.14889 of 2003) that at present mini function hall is not being run. No order as to costs in this writ petition. _____________ (V.V.S.RAO, J) 09th September, 2008 GHN To 1 Serilingampally Municipality rep by Commissioner, Serilingampally, Ranga Reddy district 2 The Hyderabad Urban Development Authority rep by Vice- Chairman, Begumpet, Hyderbad 3 2CD copies Form-NIC-OGS/WP{ } Form-NIC-OGS/WP{JA}