THE HON’BLE Ms. JUSTICE G. ROHINI WRIT PETITION No.7404 OF 2011 DATED: 27.06.2011 Between : Rakesh / Narayana Heights Residential Welfare Association, Rep. by its President Sri M. Dushyanth Reddy .. Petitioner And 1. The Govt. of Andhra Pradesh, rep. by its Principal Secretary, Municipal Administration, A.P. Secretariat Buildings, Hyderabad., And 5 others. … Respondents THE HON’BLE Ms. JUSTICE G. ROHINI WRIT PETITION No.7404 OF 2011 ORDER: The writ petitioner is an association said to have been formed to look after the welfare of the residents of an Apartment by name Rakesh / Narayana Heights. It is stated that the said apartment constructed during the year 2009 consists of five floors and all the five floors are meant for residential purpose. It is alleged that the Builder – Respondent No.4 having illegally converted the flats in the first floor from residential to commercial, had proposed to establish a hospital therein. Contending that the action of the 4th respondent was in utter violation of the Building Regulations, the petitioner made a representation dated 23.02.2011 requesting the respondents 2 and 3 to take immediate steps to stop the illegal activities of the 4th respondent. Alleging that the respondents 2 and 3 failed to take any action, the present writ petition has been filed seeking a declaration that the inaction on the part of the respondents 1 to 3 is arbitrary and illegal. In the counter-affidavit filed on behalf of the respondents 2 and 3, while denying the alleged inaction in considering the petitioners’ representation dated 23.02.2011, it is stated that the officials of the Corporation had already inspected the premises in question and that the Corporation will not permit construction of a hospital in the complex. It is further stated that the Flat Nos.106, 107 & 108 on the ground-floor admeasuring 3200 sq. ft. were let out by its owner A. Srinivasulu to the respondents 6 & 7 to establish an Infertility Centre and there was no proposal for establishment of a hospital as alleged by the petitioner. The 4th respondent in his counter-affidavit stated that he is one of the partners of developers who constructed the building in question and provided all the facilities as per the agreement between the builder and the respective flat owners. It is alleged that the petitioner is not a registered society and that the President of the said society who bore grudge against the 4th respondent has been harassing him making false allegations. While stating that he is in no way concerned with the area in question, it is explained that the said flats exclusively belong to one A. Srinivasulu, and that he had entered into a Lease Agreement with the respondents 5 and 6. It is also stated that a photo studio, supermarket, SBI ATM, ICICI ATM and Internet Centre are existing in the ground-floor for the last 1½ year and the residents of the apartment have been enjoying the facilities. The respondents 6 and 7, who got themselves impleaded to the writ petition, explained in their counter-affidavit that they have obtained Flat Nos.106, 107 & 108 on lease for a period of 10 years for the purpose of starting an Infertility Centre by name M/s. Aditya Infertility Centre and that they have been in peaceful possession and enjoyment of the same. It is also stated that whereas the total extent of the ground-floor of the complex is 14,000 sq. ft., they had taken on lease 3,200 sq. ft. for the purpose of the proposed Infertility Centre and the other parts of the ground-floor are already being used for commercial purpose wherein a photo studio, supermarket, SBI ATM, ICICI ATM, Internet Centre and Cloth stores are existing. Thus the plea of the petitioner that the entire apartment is meant for residential purpose is denied and it is contended that in fact the entire ground-floor is being used for a commercial purpose. It is also stated that though there are 14 flats each in the other four floors, which are being used for residential purpose, there is no connection between the ground-floor and the other four floors and the ground-floor has separate electricity and water connections. While contending that the proposed action of the respondents 5 and 6 for establishment of the Infertility Centre is not illegal or contrary to the statutory provisions, it is stated that in view of the interference by the members of the petitioner association with the internal partitions proposed to be made by them in the ground-floor and installation of the required equipment for commencement of the Infertility Centre, they were constrained to file O.S.No.420 of 2011 in the Court of the I-Additional Senior Civil Judge, Rangareddy District at L.B. Nagar for injunction against the flat owners and by order dated 7.3.2011 in I.A.No.375 of 2011 status quo was ordered. It is also explained that the Infertility Centre proposed by them contains a consultation room, waiting hall, laboratory and a small operation theatre to perform minor surgeries and endryology lab and it is a day care centre which functions from 8.00 am to 6.00 pm only. It is also explained that since no delivery cases or caesarians major cases are entertained in the Infertility Centre, the entire area would be maintained sterile and the activities of the centre will not have adverse impact on the health of the residents of the apartment nor the peaceful environment of the apartment would be disturbed. It is further stated that they have applied for recognition of the Infertility Centre to the District Medical & Heath Officer, and Indian Counsel of Medical Research by paying the necessary charges and in the meanwhile they are only proceeding with acquiring the equipment and finishing the interior work. I have heard the learned counsel for both the parties and perused the material available on record. As could be seen, though the building in question is a residential complex, according to the respondents the ground-floor is being used for commercial purpose. It is the specific case of the respondents 5 and 6 that the Infertility Centre proposed to be established by them is not a hospital and it does not involve any health hazardous activities. Admittedly the said Infertility Centre has not yet been commenced and according to the respondents 5 and 6, the necessary approvals by the District Medical & Health Officer and Indian Council of Medical Research are yet to be granted. It is also contended by the respondents 5 and 6 that no trade licence or sanction of the Corporation is required for running such Infertility Centre. However the learned counsel for the writ petitioner, while placing before this Court the proceedings of the District Medical & Health Officer, R.R. District, dated 28.05.2011, submitted that the permission sought by the respondent No.5 for establishment of the Infertility Centre was rejected. Be that as it may, having regard to the admitted fact that the building in question is a residential complex, it is for the respondents 2 and 3 to decide whether a part of the said building can be permitted to be used for commercial purpose. It is also necessary for them to decide whether running of the Infertility Centre proposed by the respondents 5 and 6 amounts to commercial purpose as sought to be contended by the petitioner. In the facts and circumstances of the case, there shall be a direction to the respondents 2 and 3 to consider the objections raised by the petitioner against the proposed establishment of the Infertility Centre in the ground-floor of Rakesh / Narayana Heights Complex and pass appropriate orders in accordance with law after giving an opportunity of personal hearing to the petitioner as well as the respondents 5 and 6. Such exercise shall be completed as expeditiously as possible preferably within a period of four weeks from the date of receipt of this order. Writ Petition is accordingly disposed of. No costs. ______________ G. ROHINI, J. Dt. 27.06.2011 gbs