IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) WEDNESDAY, THE SIXTH DAY OF AUGUST TWO THOUSAND AND EIGHT PRESENT THE HON'BLE MR JUSTICE B.SESHASAYANA REDDY WRIT PETITION NO : 9443 of 2006 Between: 1 Mohd.Muneeruddin, S/o.Late Mohd.Jahangir, R/o.11-3-959/3, New Mallepally, Hyderabad. 2 M/s. Nischint Constructions a Proprietory Concern, rep by its GPA Holder Ch.Baba Prasad Reddy, S/o.Veera Reddy, 46 Yrs., R/o.8-2-322, Road No.7, Banjara Hills, Hyderabad. ..... PETITIONERS AND 1 State of A.P., Rep by its Secretary, Municipal Admn &- Urban Development (M1) Department, Secretariat, Hyderabad. 2 Municipal Corporation of Hyderabad, Rep by its Commissioner, Tank Bund Road, Hyderabad. 3 Hameeduddin, S/o.Fasiuddin, R/o.1-2-559, Domalguda, Hyderabad. .....RESPONDENTS Petition under Article 226 of the Constitution of India praying that in the circumstances stated in the Affidavit filed herein the High Court may be pleased to to issue any appropriate writ, order or direction, preferably a writ in the nature of writ of certiorari, calling for the records relating to Memo.No.23943/M1/2003 dt.9-5-2005 on the file of 1st respondent and to quash the same as being arbitrary, illegal, violative of Article 14 and 300-A of the Constitution of India and consequently suspend the same and pass such other order or orders. Counsel for the Petitioners: MR.S.RAVI Counsel for the Respondent No.: GP FOR GENERAL ADMINISTRATION The Court made the following : ORDER: This writ petition has been filed by Mohd. Muneeruddin and M/s.Nischint Constructions, a proprietary concern rep. by its GPA Holder Ch.Baba Prasad Reddy assailing the Memo No.23943/M1/2003, dated 03.03.2006, issued by the Secretary, Municipal Administration and Urban Development (M1) Department, Government of A.P., Hyderabad-1st respondent, whereby and whereunder the building permission granted in favour of Mohd.Muneeruddin-1st petitioner through Permit No.371/4, dated 05.06.1992 in File No.729/7/5/69-91/3520/TP 6/91 by the Commissioner, Municipal Corporation of Hyderabad, has been cancelled. 2. Background facts of the case in a nutshell leading to filing of this writ petition by the petitioners in brief are: Mohd. Muneeruddin-1st petitioner claimed that his grandfather viz., Shaik Bandagi Saheb purchased 1000 sq. yards from Mehtab Saheb. His grandfather had two sons and one daughter viz., Mohd.Jahangir, Mohd.Illiyas and Khasim Bee. Mohd.Illiyas and Khasim Bee died issueless and they predeceased their father. Mohd. Jahangir, the father of the 1st petitioner died in 1972. The petitioner being only son of Mohd. Jahangir became absolute owner of 1000 sq. yards. He got mutation proceedings in his favour and consequently ownership certificate was also issued by the Municipal Corporation of Hyderabad, Hyderabad-2nd respondent on 22.12.1961. Since the year 1961, the 1st petitioner has been paying property tax regularly to the 2nd respondent. A.P.Wakf Board rep. by its Secretary filed a civil suit being O.S.No.2193 of 1977 on the file of VII Assistant Judge, City Civil Court, Hyderabad against the 1st petitioner and one Abdul Waheed, seeking declaration and permanent injunction in respect of Mulgies bearing Municipal No.5-9- 29/1/3 situated at Basheer Bagh Road. The said suit ended in dismissal, by judgment dated 31.10.1980. Assailing the same, the A.P.Wakf Board filed an appeal being A.S.No.308 of 1981 on the file of the Additional Chief Judge, City Civil Court, Hyderabad. The appeal also ended in dismissal on 05.08.1982. Thus, the claim made by the A.P.Wakf Board over the property was set at rest with the dismissal of the appeal. The 1st petitioner being the owner of 1000 sq. yards sold a portion of it to one Eswaraiah under a sale deed dated 11.5.1966. There was a litigation regarding the title of the site sold to Eswaraiah and it was the subject matter of the suits being O.S.No.25 of 1968 and O.S.No.78/66 to which the Municipal Corporation of Hyderabad, District Collector, Hyderabad, Executive Engineer, Hyderabad, Hyderabad Water Board Department, Hyderabad were parties. More precisely A.P. Wakf Board filed O.S.78/66 and whereas Eswaraiah filed O.S.No.25/66. Both the suits ended in dismissal. Eswaraiah filed CCCA.No.93/72 and whereas A.P.Wakf Board filed CCCA.No.48/73. The appeal filed by Eswaraiah was allowed and whereas appeal filed by A.P.Wakf Board ended in dismissal. The A.P.Wakf Board filed LPANo.196 of 1975 which also ended in dismissal. Ultimately the suit filed by Eswaraiah ended in decree. The 1st petitioner entered into development agreement with the 2nd petitioner in the year 1993 in respect of 618 sq. yards in premises bearing No.5-9-29/1, Liberty X Roads, Hyderabad. The 2nd petitioner obtained permission from the Municipal Corporation of Hyderabad-2nd respondent vide Permit No.371/4, dated 05.07.1992. Pursuant to the permit, the 2nd petitioner started construction. When Hameeduddin-3rd respondent attempted to interfere with the construction, the petitioners filed O.S.No.510 of 1994 on the file of VI Junior Civil Judge, City Civil Court, Hyderabad, against Hameeduddin and 2 others and sought for permanent injunction. Initially temporary injunction was granted, by order dated 04.12.1998. The 3rd respondent herein filed revision being C.R.P.No.5225 of 1998 and ultimately the said revision ended in dismissal on 03.03.2003. The trial Court by judgment dated 02.09.2003 decreed the suit and granted permanent injunction in favour of the petitioners. Hameeduddin-3rd respondent herein filed O.S.No.507 of 1995 on the file of VI Assistant Judge, City Civil Court, Hyderabad, seeking perpetual injunction which ended in dismissal, by judgment dated 20.10.1998. He also filed another suit being O.S.No.28 of 2002 on the file of the Andhra Pradesh Wakf Tribunal, Hyderabad and the same also ended in dismissal on 05.09.2002 as withdrawn. The 2nd petitioner filed O.S.No.601 of 2001 on the file of III Junior Civil Judge, City Civil Court, Hyderabad against the Municipal Corporation of Hyderabad-2nd respondent and obtained interim injunction, which was subsequently made absolute, by order dated 16.08.2001. The 3rd respondent filed W.P.No.9096 of 2002 alleging that the 2nd petitioner is making constructions in the premises bearing No.5-1-29/1 against the Rules and Regulations of the Municipal Corporation of Hyderabad and sought direction to the Municipal Corporation of Hyderabad-2nd respondent herein to demolish the structures already made. The said writ petition ended in dismissal on 05.12.2003. The 3rd respondent preferred writ appeal being W.A.No.2238 of 2003, which also ended in dismissal on 22.12.2003. 3rd respondent herein having failed in all his attempts approached the Secretary, Municipal Administration and Urban Development Authority (M1) Department, Government of A.P., Hyderabad-1st respondent by filing a revision under Section 679 of the Hyderabad Municipal Corporation Act, 1955, on 19.12.2003. The 3rd respondent filed W.P.No.4504 of 2005 complaining inaction on the part of 1st respondent on the revision presented by him. The said writ petition was disposed of on 09.03.2005. The 3rd respondent filed contempt case being C.C.No.190 of 2006 complaining disobedience of the order passed in W.P.No.4504 of 2005. The contempt case came to be disposed of on 06.03.2006. The 3rd respondent filed another writ petition being W.P.No.21456 of 2005 against the Municipal Corporation of Hyderabad-2nd respondent and its subordinates complaining their inaction in demolishing the structures made by the 2nd petitioner herein. The 1st respondent in exercise of the revisional powers cancelled the permission granted to the 1st petitioner through Permit No.371/4, dated 05.06.1992 in File No.729/7/5/69-91/3520/TP 6/91, vide Memo No.23943/M1/2003, dated 03.03.2006. The said Memo is under challenge in this writ petition. 3. Respondents 1 and 2 filed counter-affidavits. S.Bala Krishna, Joint Director, Municipal Administration and Urban Development Department, Govt. of A.P., Hyderabad, has sworn to the counter-affidavit filed on behalf of the 1st respondent. It is stated in the counter-affidavit that the 1st petitioner did not place title deeds as required under Section 429 (aa) of the Hyderabad Municipal Corporation Act, 1955 (for short, ‘the Act’) and Municipal Building Bye Law No.4.2 (v) of 1981 while submitting the application for sanction of building permission. Therefore, permission granted to the 1st petitioner through Permit No.371/4, dated 05.06.1992 in File No.729/7/5/69-91/3520/TP 6/91 is contrary to Section 429(aa) of the Act and Municipal Building Bye Law No.4.2(v). Accordingly, the building permission granted to the 1st petitioner came to be cancelled, on a revision filed by 3rd respondent herein. For better appreciation, I may refer para.4 of the counter- affidavit and it reads as hereunder: “It is submitted that in pursuance of the orders passed by this Hon’ble High Court, notices were issued vide Government Memo.No.23943/M1/2003, dated 29.4.2005 and 9.5.2005 to all concerned to attend for hearing on 12.05.2005. The Counsel for the writ petitioner and the counsel for the 3rd respondent (revision petitioner) and the representative of M/s.Nischint Constructions i.e, the builder of the writ petitioner and the Chief City Planner, Municipal Corporation of Hyderabad i.e. representative of the 2nd respondent have attended the hearing. Government heard both the parties and after careful examination of the matter and the records of Municipal Corporation of Hyderabad relating to the Permit No.371/4, dated 05.06.1992 observed that in 1991 though the Wakf Board wrote a letter to the Commissioner, Municipal Corporation of Hyderabad clearly stating that Sri Muneeruddin Ahmed i.e, the writ petitioner herein is an encroacher and Land Grabber and requested the Commissioner, Municipal Corporation of Hyderabad to refuse granting of permission, the plan was approved by the Municipal Corporation of Hyderabad on the basis of the copies of the judgments in suit, appeal and L.A.P., between Sri Muneeruddin Ahmed (petitioner herein) and the District Collector and the Judgments filed by the Sri Muneeruddin Ahmed on 13.09.1991. On perusal of those judgments and material papers the Municipal Corporation of Hyderabad sought for an undertaking from Sri Muneeruddin Ahmed to the effect that he will hand over the land coming under road widening to the Municipal Corporation of Hyderabad free of cost and without claiming any compensation for the land as a condition precedent for sanctioning the building permission. It is observed that though no title deeds were submitted as required under Section 429 (aa) of Hyderabad Municipal Corporation Act, 1955, and Municipal Corporation Building Bye Law No.4.2 (v) of 1981 the Municipal Corporation of Hyderabad has accorded permission when Sri Muneeruddin Ahmed agreed to hand over the land coming under road widening. Therefore, it was held that the permission granted to Sri Muneeruddin Ahmed i.e., writ petitioner herein through the permit No.371/4, dated 05.06.1992, in File No.729/7/5/69-91, 3520/TP6/91 by the Commissioner, Municipal Corporation of Hyderabad is contrary to the section 429(aa) of H.M.C. Act, 1955 and Municipal Corporation Building Bye-Law No.4.2(v). Accordingly, vide Government Memo No.23943/M1/2003, Dt.3.3.2006 the Revision Petition filed by Sri Muneeruddin Ahmed was disposed by canceling the permit No.371/4, dated 05.06.1992, issued by the Commissioner, Municipal Corporation of Hyderabad. In the said Government Memo it was made clear that Sri Muneeruddin Ahmed is at liberty to settle the ownership dispute in the appropriate court of law and approach the Commissioner, Municipal Corporation of Hyderabad with the valid title deed for issue of necessary building permission and upon receiving such application the Commissioner, Municipal Corporation of Hyderabad shall consider the building permission after giving due opportunity to both the parties and dispose of the same as per law and as per prevailing rules by taking documentary proof of title etc., into consideration.” Rule nisi came to be issued on 28.4.2006. Interim suspension as sought for has also been granted as per orders in WPMP.No.11951 of 2006. R3 entered appearance and filed WVMP.No.1103 of 2006 to vacate the interim order dated 28.4.2006. R3 filed WPMP.No.11400 of 2007 for issue of a direction to Municipal Corporation of Hyderabad (now known as Greater Hyderabad Municipal Corporation) for production of records of Town Survey records pertaining to grant of permission for raising constructions in the premises bearing H.No.5-1-29/1, Basheerbagh, Hyderabad. The said application came to be dismissed on 13.7.2007. The order passed in the said application reads as under: “Smt.Neeraja Sudhakar Reddy for Shri.B.Sudhakar Reddy for the applicant. Shri.Ch.Pushyam Kiran for Shri.S.Ravi for non-applicant No.3. This is an application by the applicant for issue of a direction to Municipal Corporation of Hyderabad (now known as Greater Hyderabad Municipal Corporation) for producing records of town survey, records pertaining to grant of permission for raising construction in premises bearing H.No.5-1-29/1, Basheerbagh, Hyderabad. We have heard learned counsel for the applicant. Since the applicant is not shown to have resorted to the provisions of the Right to Information Act, 2005, we do not consider it proper to entertain the prayer made in the application. With the above observation, the application is dismissed.” The petitioners filed WPMP.No.10891 of 2007 seeking permission to place on record certified copy of the sale deed issued by Ist Additional City Civil Court, Hyderabad. The said application came to be allowed on 13.7.2007. On the said date the vacate stay petition being WVMP.No.1103 of 2006 filed by R3 also came up for consideration. The following order came to be passed on the said application. “ Smt.Neeraja Sudhakar Reddy for Shri.B.Sudhakar Reddy for the applicant. Shri.Ch.Pushyam Kiran for Shri S.Ravi for non-applicant Nos.3 and 4. Shri.R.Ramachandra Reddy, learned counsel for Greater Hyderabad Municipal Corporation. This is an application for vacating interim order dated 28.4.2006 passed in WPMP.No.11951 of 2006 (W.P.No.9443 of 2006). We have heard learned counsel for the applicant, learned counsel for the writ petitioners and the counsel representing Greater Hyderabad Municipal Corporation. In reply to the Court’s query, Shri.R.Ramachandra Reddy, learned counsel for Greater Hyderabad Municipal Corporation gave out that the writ petitioners have, by taking advantage of the interim orders passed by the civil court, completed the construction. He further gave out that the building has not been occupied so far and occupancy certificate has not been issued. Learned counsel for the petitioners also admitted that the building has not been occupied so far. In view of the above, we direct that the building constructed by the writ petitioners shall not be occupied by any one and shall not be alienated by them to any third party by any mode. The Hyderabad Metropolitan Water Supply and Sewerage Board is directed not to provide permanent water connection to the building and A.P. Transco is directed not to provide permanent electricity connection. Learned counsel representing Greater Hyderabad Municipal Corporation is directed to communicate this order to the functionaries of Hyderabad Metropolitan Water Supply and Sewerage Board and A.P. Transco. We further direct the concerned officer of Greater Hyderabad Municipal Corporation to file a detailed affidavit giving the particulars of the sanction granted by the Municipal Corporation of Hyderabad for construction of the building, the deviations, if any made, the notices issued under the Hyderabad Municipal Corporations Act, 1955 and the civil litigation instituted by the petitioners. The required affidavit be filed within two weeks. The writ petitioners may file supplementary affidavit within next two weeks. List the case on 24.8.2007 for further consideration of the application.” 4. B.Purushotham Reddy, Chief City Planner, Municipal Corporation of Hyderabad, has sworn to the counter-affidavits filed on behalf of the 2nd respondent on 03.11.2006 and 30.07.2007. It is stated in the counter-affidavits that the 2nd respondent is not the competent authority to make the roaming enquiry and determine the title of the respective parties and it can only examine the documents furnished along with the application and the same is only for the purpose of satisfying itself with the prima facie title of the applicant. The 1st petitioner did not undertake the construction within the stipulated period and on noticing that he commenced construction after lapse of the specified period in violation of Section 440 of the Act was asked to stop the construction forth with and accordingly, a show-cause notice under Section 452 of the Act was issued. Thereupon, the 1st petitioner filed O.S.No.510 of 1994 on the file of VI Junior Civil Judge, City Civil Court, Hyderabad. The 1st petitioner filed O.S.No.607 of 1994 on the file of I Senior Civil Judge, City Civil Court, Hyderabad and secured interim injunction on 10.06.1994 in I.A.No.686 of 1994. The 2nd petitioner filed a fresh suit in O.S.No.601 of 2001 on the file of III Senior Civil Judge, City Civil Court, Hyderabad and secured interim injunction restraining the Municipal Corporation from demolition of the constructions. The 1st petitioner submitted building plan on 08.12.1969 seeking permission for construction of commercial complex consisting of Cellar for parking, ground floor partly for parking and partly for showrooms, first and second floors for show rooms duly dismantling the existing structures in Premises No.5-9-29/1, Liberty Junction, Basheerbagh, Hyderabad. The 1st petitioner was asked to furnish the documents and plan and no objection certificate from the District Collector and Wakf Board under letter dated 13.05.1970. In the year 1971, the 1st petitioner re-submitted the building permission application without enclosing the documentary plan and the no objection certificates. Hence, under a letter dated 26.05.1971, the 1st petitioner was asked to submit the documents as called for earlier. The 1st petitioner again made a representation under letter dated 22.08.1975 for grant of permission as prayed for. The plan submitted by the 1st petitioner came to be returned under letter dated 11.02.1976 directing him to re-submit the same after getting no objection certificate from the District Collector, Hyderabad. The 1st petitioner submitted an application on 25.01.1983 stating that the question of producing no objection certificate does not arise in view of the judgment in C.C.C.A.No.48 of 1971, dated 19.02.1975. The permission sought for by the 1st petitioner came to be refused by letter dated 04.06.1983. The 1st petitioner again submitted the proposals on 28.01.1991 along with documents, which were produced earlier. On verification of the documents furnished by the 1st petitioner, it was found that the property admeasuring 1400 sq. yards approximately bearing No.5-9-29/1 was in the name of the 1st petitioner and out of which, the 1st petitioner sold 741 sq. yards to one G.Eswaraiah and retained 659 Sq.yards for himself. The said G.Eswaraiah applied for building permission and the same was not considered for want of proof of title and production of no objection certificate from the District Collector. Taking shelter under Section 437 of the Act, G.Eswaraiah proceeded with the construction and filed O.S.No.25 of 1968 against the 2nd respondent, District Collector, Hyderabad and others. The said suit along with another suit O.S.No.78 of 1966 ended in dismissal. Aggrieved by the judgment and decree passed in O.S.No.25 of 1968, Eswaraiah filed CCCA.93/72 whereas A.P.Wakf Board filed CCCA.NO.48/73 against the judgment and decree passed in O.S.78/66. CCCA.No.93/72 came to be allowed on 19.02.1975 holding that G.Eswaraiah and his predecessors in interest have title over the property and the Government has no title over the property and also restrained the 2nd respondent from interfering with the construction subject to certain conditions. The appeal filed by the A.P.Wakf Board ended in dismissal and further appeal being LPA.No.196/75 also ended in dismissal. Municipal Corporation of Hyderabad-2nd respondent under letter dated 04.04.1991 requested the Collector and the Secretary, A.P.Wakf Board to verify the ownership of the land and to send their opinion within 10 days. The Collector did not send any reply and whereas the Secretary, A.P.Wakf Board under letter dated 17.05.1991 claimed that the site is part of grave yard and the 1st petitioner is a land grabber and resisted for grant of building permission. The 1st petitioner on being informed of the objections raised by the A.P. Wakf Board, submitted once again the copies of the judgment in O.S.No.2193 of 1979 and A.S.No.308/81. Considering the documents furnished by the 1st petitioner and based on the legal opinion and consent of the 1st petitioner to surrender a part of site free of cost for the proposed 100 feet wide road at Liberty junction, building permission was granted to the 1st petitioner on 05.06.1992 vide Permit No.371/4, dated 05.06.1992 in File No.729/7/5/69-91/3520/TP 6/91. Aggrieved by the permission granted to the 1st petitioner, the 3rd respondent herein filed revision before the 1st respondent and thereupon, the 1st respondent cancelled the permit granted in favour of the 1st petitioner, by order dated 03.03.2006. As per Municipal Building Bye Law No.7.1 of 1981, the permit is valid upto 3 years from the date of the permit. As per provisions of the Act, the petitioners are required to give commencement notice to the Municipal Corporation of Hyderabad-2nd respondent. The 1st petitioner has not commenced the construction within one year from the date of receipt of the permit. Hence, permit dated 05.06.1992 granted to the 1st petitioner is deemed to be lapsed. But the petitioners commenced the construction without issuing the commencement notice under Section 440 of the Act. Therefore, a show-cause notice, dated 06.06.1994, under Section 452 of the Act came to be issued to the 1st petitioner. Aggrieved by the same, the 1st petitioner filed O.S.No.607 of 1994 for perpetual injunction restraining the 2nd respondent from interfering with the construction. An interim injunction came to be granted on 10.06.1994 in I.A.No.686 of 1994. The suit ended in dismissal on 28.09.2000. After securing temporary injunction in I.A.No.686 of 1994 in O.S.No.607 of 1994, the 1st petitioner proceeded with the construction work without permission and made the following deviations to the sanctioned plan, which was lapsed. 1. No front setback towards eastern side is maintained as against 20’ after leaving the affected portion under road widening. 2. No rear setback is maintained on western side as against 10’ 3. No side setback is maintained on southern side as against 22’ to 40’ 4. Constructed the sub-cellar without permission and using for Stores. 5. Constructed the cellar on the entire site after leaving the affected portion for show rooms. 6. Not constructed ramps for sub-cellar & cellar. 7. Constructed shops in the area reserved for parking by encroaching into the front, rear and side set backs at ground floor. 8. Projected the balcony to an extent of 5’-0’ and enclosed into the built up area such as shops & show rooms against the permitted 3’-0’ open balcony. 9. Unauthorized construction of 3rd floor identical to the lower floors. 10. Increased the height of the building upto 42’ as against 32’. 11. Increased the built up area at each floor i.e., in ground + 3 upper floors against the sanction plan. 12. The sub-cellar & cellar and partly ground floor meant for parking has been converted into Stores & Show rooms, thereby there is no parking space. Further constructed steps on the road margin. The petitioners submitted application under building regularization scheme in the year 1998 in File No.5064/BRS/HO/98, for regularization of deviations and unauthorized constructions under G.O.Ms.No.419 MA, dated 30.07.1998. As per the conditions of the said G.O., the regularization of the structures can be granted if the construction is completed before 30.06.1998, whereas during physical inspection in the year 1999, it was noticed that the construction work in the entire building was in progress. Further, the plan submitted for regularization is also not tallied with the existing ground position. Hence, his application for regularization of construction came to be rejected under proceedings No.5064/BRS/HO/98, dated 30.05.2000. Having known that the 2nd respondent was taking steps for removing the unauthorized structures, the 2nd petitioner filed O.S.No.601 of 2001 on the file of III Senior Civil Judge, City Civil Court, Hyderabad, seeking permanent injunction restraining the 2nd respondent not to interfere with the possession and further not to demolish the building. He also filed I.A.no.119 of 2001 and secured interim relief on 08.02.2001. The suit came to be dismissed for default on 08.09.2006 and thereafter, an application came to be filed for restoration which also ended in dismissal on 29.03.2007. The 3rd respondent herein filed w.P.No.9096 of 2002 against the 2nd respondent complaining inaction on his representation with regard to the illegal constructions made by the petitioners. Since the order of injunction was pending, the writ petition ended in dismissal. The 3rd respondent filed another writ petition being W.P.No.21546 of 2005 and sought for a direction to the 2nd respondent to take further action for demolition of the illegal structures in premises no.5-9-29/1 in pursuance of the Notice dated 06.06.1994 under Section 452 o the Act. He also filed W.P.No.8639 of 2006 seeking direction to the 2nd respondent to carry out the demolition of the structures within three weeks. A show-cause notice was issued to the petitioners as provided under Section 450 of the Act proposing cancellation of the building permission granted on 05.06.1992. But, in view of the injunction