IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) MONDAY, THE NINETEENTH DAY OF JANUARY TWO THOUSAND AND NINE PRESENT THE HON'BLE MR JUSTICE B.SESHASAYANA REDDY WRIT PETITION NO : 474 of 2008 Between: 1 Kolli Devudu S/o. Appalanayudu Flat No. S1, Sreeramananilayam Balajinagar, Gudimalkapur, Hyderabad. 2 Simma Sarada W/o. Naraynayana Rao Flat No. S2, Sreeramananilayam Balajinagar, Gudimalkapur, Hyderabad. ..... PETITIONER(S) AND 1 Greater Hyderabad Municipal Corporation, Hyderabad, Rep. by its Commissioner, Hyderabad. 2 The Assistant City Planner (ACP) Circle IV Greater Hyderabad Municipal Corporation of Hyderabad, Khairathabad, Hyderabad. 3 Mallesh Yadav S/o.Not known R/o. Plot No. 42, Balajinagar, Gudimalkapur, Hyderabad. 4 Y.R. Mohanreddy S/o. Not known Padmavathi Plaza, Flat No. 406, Opp. KPHP , Hyderabad. .....RESPONDENT(S) 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 top issue a writ order or direction more particularly in the nature of writ of Mandamus declaring the inaction of respondents 1 and 2 in not initiating any action against the building construction under taken by respondents 3 and 4 in plot No. 42 Balajinagar, Gudimalkpur Hyderabad situated to the North of Sreeramanailayam, contrary to approved plan and also G.O.Ms.No. 86, Municipal Administration and Urban Development (M) Department dt. 3-3-2006 as illegal, arbitrary and unconstitutional and consequently direct respondents 1 and 2 that respondents 3 and 4 would construct the said building in accordance with the approved plan and also as per the provisions of G.O.Ms.No. 86 and pass Counsel for the Petitioner:MR.N.SRIRAM MURTHY Counsel for the Respondent No.: SMT.KALPANA EKBOTE The Court made the following : THE HONOURABLE SRI JUSTICE B. SESHASAYANA REDDY WRIT PETITION NO. 474 OF 2008 ORDER: 1. This writ petition has been filed by the petitioners who are two in number with a prayer to issue a writ, order or direction more particularly one in the nature of writ of mandamus declaring the inaction of the respondents 1 and 2 in initiating any action against the unauthorized construction under taken by respondents 3 and 4 in Plot No 42, Balajinagar, Gudimalkapur, Hyderabad 2. 3rd Respondent is the owner of the site admeasuring 325 square meters in Plot No. 42 in Balajinagar, Gudimalkapur, Hyderabad and the 4th respondent entered into a Development Agreement with the 3rd Respondent. Permission has been obtained for construction of ground plus two floors. 3. It is the grievance of the petitioners that respondents 3 and 4 are proceedings with the construction contrary to the sanctioned plan. Their representations to the Respondents No.1 and 2 did not yield any fruitful results and therefore, they approached this Court by invoking jurisdiction under Article 226 of the Constitution of India. 4. Notice before admission came to be ordered. The respondents 2 and 4 entered appearance through their respective counsel and filed counter affidavits. 5. Sri K. Narasinga Rao has sworn to the counter affidavit filed on behalf of the respondent No.2. It is stated in the counter affidavit that necessary proceedings have been initiated against respondents 3 and 4 on noticing the constructions made by them are in violation of the sanctioned plan. For better appreciation para 2 of the counter affidavit needs to be noted, which reads as hereunder:- “In reply to para 4 of the affidavit, it is respectfully submitted that it is a fact that the Petitioners made complaint against the unauthorized construction made by 3rd Respondent. It is further submitted that the 3rd Respondent obtained permission for construction of Ground + 2 upper floors as per G.O.Ms. No. 423, MA, dated 31-7-1998 vide Permit No. 89/63 dated 18-1- 2006 in File NO. 439/6/13/2005. The 3rd respondent constructed the building in violation of sanctioned plan and make unauthorized construction of 3rd and 4th floors over permitted Ground + 2 upper floors. This office issued notice under Section 461 of Hyderabad Municipal Corporation Act, 1955 has been served upon the 3rd respondent on 23-1- 2008. After the lapse of the said notice a show cause notice under Section 452 of Hyderabad Municipal Corporation Act, 1955 was issued on 24-1-2008. Since no reply was received, final notice under Section 636 of Hyderabad Municipal Corporation act, 1955 is being served upon the 3rd Respondent. Action will be taken on unauthorized construction after the lapse of time given in the said notice”. The 4th Respondent admitted in the counter affidavit that permission has been obtained for G+2, but proceeding with the construction of G+3 upper floors. It is further stated in the counter affidavit that the suit being O.S.No.631 of 2008 on the file of the IV Junior Civil Judge, City Civil Courts, Hyderabad has been filed and injunction has been obtained restraining the respondents from demolishing the said structure and the suit is pending for trial. 6. When the writ petition came up for admission, with the consent of both the parties, it is taken for final disposal. 7. Heard learned counsel for the parties. 8. Learned counsel for the petitioners submits that the respondents 3 and 4 made constructions in violation of the sanctioned plan and the efforts made by petitioners to stop the unauthorized construction proved futile and therefore, they approached this Court invoking jurisdiction under Article 226 of the Constitution of India. 9. 4th Respondent approached the Civil Court and obtained temporary injunction restraining the respondents from demolishing the unauthorized construction and submitted application for regularization of unauthorized constructions and the said application is stated to be pending. 10. A fact remains that building permission was sanctioned by the Corporation is in respect of Ground plus two upper floors. Respondents 3 and 4 proceeded with the construction of Ground plus three upper floors. It is in clear violation of the sanctioned plan. Of course, a submission has been made by the learned counsel appearing for Respondent NO.4, that the application filed for regularization of unauthorized construction is pending for consideration. 11. In that view of the matter, the respondents 3 and 4 shall not make use of unauthorized constructions and they shall remain vacant pending consideration of their application for regularization. In the event of the construction being regularized by the Corporation, they are at liberty to make use the property as they desire. 12. With the above observation, this writ petition is disposed of. No order as to costs. ______________________________ Justice B. Seshasayana Reddy 19th January, 2009. KM THE HONOURABLE SRI JUSTICE B. SESHASAYANA REDDY WRIT PETITION NO. 474 OF 2008 19th January, 2009.