IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) MONDAY, THE TWENTIETH DAY OF OCTOBER TWO THOUSAND AND EIGHT PRESENT THE HON'BLE SRI JUSTICE V.V.S.RAO WRIT PETITION No.6237 of 2005 Between: 1 Sri K. Sree Chandra S/o Late Sri K. Vinaya Kumar General Secretary of Blooming Dale Society P.S. Nagar/Vijayanagar Colony, Hyderabad-57 R/o Block 12, Flat No.4 (Municipal No. 10-3-444/48) P.S> Nagar/Vijayanagar Colony, Hyderabad-57 2 Sri K. Satish Chandra S/o Late Sri K. Vinaya Kumar Treasurer of Blooming Dale Society P.S. Nagar/Vijayanagar Colony, Hyderabad-57 R/o Block 12, Flat No.4 (Municipal No. 10-3-444/48) P.S> Nagar/Vijayanagar Colony, Hyderabad-57 ..... PETITIONERS AND 1 The Commissioner, Hyderabad Municipal Corporation, Hyderabad 2 Assistant City Planner, Circle-IV Municipal Corporation of Hyderabad, Kairthabad, Hyderabad-4 3 Irfan S/o late M.A. Jabbar Owner of Flat No. B12 F3 Municipal No. 10-2-444/47 P.S. Nagar, Hyderabad-57 4 Prl. Secretary to Govt. of A.P., Housing Dept., Govt. of A.P., Secretariat, Hyderabad 5 A.P. Housing Board rep. by Vice Chairman & Housing Commissioner, A.P. Housing Board, Gruhakalpa, Hyd 6 Dy. Executive Engineer(Housing) North Division, Sub Division- II,A.P.Housing Board, Bharatnagar, Hyderabad RR 4to6 impleaded as per court order dt. 29-3-2005 in WPMP 8908 of 2005 .....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 call for the records in respect of the petitioners representation dated 28-2-2005 given to respondents no.1 & 2 and also the representation of respondent No.3 dated 27-1-2005 given to the respondents 1 7 2 and issue a Writ of Mandamus or any other appropriate Writ or order or direction in the nature of Mandamus or any other appropriate Writ or order or direction the nature of mandamus declaring the threatened action of respondent No.2 to demolish the three temporary sheds situated adjacent to the south and west Side of the ground ﬂoor ﬂat B12/F4 Municipal No. 10-3-444/48, P.S. Nagar/Vijayanagar Colony, Hyderabd-67 as illegal and inoperative in law and also issue a consequential direction to respondents 1 & 2 to dispose of the petitioner's representation dt 28-2-2005 given to the respondents 1 & 2 and pass such other order or orders as the Hon'ble Court deem fit. Counsel for the Petitioners: SRI T.RAMAKRISHNA RAO Counsel for the Respondents: R.RADHA KRISHNA REDDY(SC FOR GHMC,SNCZONE) The Court made the following : THE HON'BLE SRI JUSTICE V.V.S.RAO WRIT PETITION No.6237 of 2005 ORDER: The two petitioners ﬁled the instant writ petition seeking a writ of mandamus declaring the threatened action of respondent No.2 to demolish three temporary sheds situated adjacent to the south and west side of the ground ﬂoor Flat B12/F4, Municipal No.10-3-444/48, P.S.Nagar/Vijayanagar Colony, Hyderabad (the ﬂat, for brevity), as illegal, and for a consequential direction to respondent Nos.1 and 2 to dispose of the representation dated 28.02.2005 made by petitioners. The petitioners’ great grandfather purchased the ﬂat from the original allottee, Smt.Y.Tara Devi, under a registered sale deed dated 12.05.1978. It appears, in 1978 a compound wall was constructed to the said ﬂat. The petitioners and their parents, allegedly, are residing in the ﬂat and the owner of the ﬂat executed a gift deed dated 12.08.1997 in favour of the petitioners. In 1987 temporary sheds were erected in the appurtenant land on south and west, and petitioners’ mother commenced a primary school, known as Blooming Dale School. On a complaint given by respondent No.3 to APHB (respondent No.5), the Assistant Engineer visited the ﬂat and took measurements. The petitioners and their grandfather gave a representation to the Sub Inspector of Police/Station House Oﬃcer, P.S.Humayun Nagar, on 28.02.2005 informing the alleged highhanded acts of respondent No.3 and other owners of the ﬂats in the said block. The petitioners allege that the Assistant City Planner Circle IV came to the premises on 25.02.2005 and threatened to demolish the three sheds constructed on the ground ﬂoor. Therefore, the present writ petition is filed. Before noticing the counter averments it is interesting to read the prayer in the writ petition extracted herein below. For the reasons stated in the accompanying aﬃdavit, the petitioners pray that the Hon’ble Court may be pleased to call for the records in respect of the petitioners representation dated 28-2-2005 given to respondents Nos.1 & 2 and also the representation of respondent No.3 dated 27-1- 2005 given to the respondents 1 & 2 and issue a Writ of Mandamus or any other appropriate Writ or order or direction in the nature of Mandamus declaring the threatened action of respondent No.2 to demolish the three temporary sheds situated adjacent to the south and west Side of the ground ﬂoor ﬂat B12/F4 Municipal No. 10-3-444/48, P.S. Nagar/Vijayanagar Colony, Hyderabd-67 as illegal and inoperative in law and also issue a consequential direction to respondents 1 & 2 to dispose of the petitioner's representation dt 28-2- 2005 given to the respondents 1 & 2 and pass such other order or orders as the Hon'ble Court deems fit. It is axiomatic that a writ petition challenging the threatened action does not lie. Similarly, when the petitioners themselves gave a representation to respondent Nos.1 and 2, the question of calling for the records connected with the said representation does not arise until an order adverse to the interests of the petitioners or an order causing prejudice to the interests is passed and such order is challenged in the writ petition. For this reason itself, the writ petition has to be dismissed. However, having regard to the factual background, which is brought to the notice of this Court by the learned Standing Counsel for APHB, it is necessary to add some more to this order. In their counter aﬃdavit, APHB has stated as follows. The ﬂat was originally allotted to Smt.Tara Devi. In the land appurtenant to the ground ﬂoor ﬂat, the petitioners constructed three temporary sheds contrary to the rules and regulations of Housing Board. Therefore, the owners of ﬁrst ﬂoor ﬂats submitted a complaint. The premises was inspected, when it was noticed that two numbers of AC sheet rooms and one number of AC sheet shed on the open land available on the site admeasuring 190 square yards were constructed by the petitioners’ predecessors. The structures are causing damages to the ﬂats. A reference is also made to the letter issued to the allottee to remove the illegal structures on APHB land. This Court heard learned Counsel for the petitioners, learned Standing Counsel for APHB and learned Counsel for respondent No.3. The controversy is in a narrow compass. The petitioners’ Counsel contends that when APHB claims title for the ownership to the land on which sheds are raised, they themselves cannot decide the question. There cannot be dispute on this core. However, that is not all the controversy. In exercise of powers under Section 71 of the Andhra Pradesh Housing Board Act, 1956 (the Act, for brevity), the Andhra Pradesh Housing Board (User of Appurtenant Land of Multistoried Buildings) Regulations, 1991 (the Regulations, for brevity), have been made. Regulation Nos.4 and 14 thereof read as under. 4) The ownership of the appurtenant land shall vest “jointly” in the ﬂat owners of the building in all the multistoried building constructed by A.P.Housing Board. The appurtenant land shall not be put to any use even for growing vegetable plants by any ﬂat owner. None of the ﬂat owners including the owners of ground ﬂoor shall have any right of construction or raise additional accommodation over the appurtenant land. The ground ﬂoor owners shall have no right whatsoever to impose any restrictions on the use of the appurtenant land by the ﬂat owners of upper ﬂoors except to the extent mentioned in these regulations. 14) The A.P.Housing Board shall dismantle the unauthorized structure if any and made on the appurtenant land of the building and collect the damages from the ﬂat owners responsible for the illegal and unauthorized construction. The original allottee or subsequent purchasers had no right to raise any constructions on the appurtenant land, which is made for common use of all the owners of ﬂats and block. Indeed, the settlement deed executed by great grandfather of the petitioners on 12.08.1997 is in respect of Flat No.4 in Block No.12 in ground floor, Municipal No.10-3-444/48, admeasuring 1102.5 square feet along with undivided share of land 61.25 square yards or 51.20 square metres situated at P.S.Nagar, Hyderabad. Therefore, Housing Board was justiﬁed in issuing a letter to the petitioners to remove the structures in appurtenant land. A copy of the letter bearing No.480/DEE(Hg)N/2005, dated 24.03.2005, sent to the allottee of Flat No.4 by Deputy Executive Engineer (Housing), North, APHB, is placed before this Court, and the same reads as under. OFFICE OF THE DY.EXECUTIVE ENGINEER (HG): NORTH DIVISION: SUB DIVN.NO.II A.P.HOUSING BOARD Letter No.480/DEE(Hg)N/2005 Dated:24.03.2005 To The Allottee, H.No.B12/F4, 10-3-444/47, P.S.Nagar, Hyderabad. Sir, Sub: APHB – Dy.EE(Hg)/N – Illegal construction on common Land ground ﬂoor H.No.10-3- 444/43 B12/F4 at P.S.Nagar – Removing – Reg. Ref: Lr.No.Nil, Dt:18-3-2005 from M.A.IRFAN, Resident of B12/F3 at P.S.Nagar. It is observed that at appurtenant land to B12/F4 at P.S.Nagar unauthorized construction is carried out and the premises is used as School. The unauthorized temporary A/C sheet structure is in the appurtenant land is not ﬁt for occupation and not as per building Bye-laws, which is causing diﬃculties to upper ﬂoor Residents and highly objectionable as per A.P.Housing Board Regulations. Hence, you are requested to vacate the Appurtenant land within one week and to handover the vacant position. Failing which the A.P.Housing Board will take necessary action for removing of unauthorized construction at your cost. Yours faithfully, Sd/- Dy.Executive Engineer (Hg) North:APHB:HYD No exception can be taken to the above letter. Indeed, as pointed out by this Court in an unreported judgment in Housing Board Colony Allottees’ Welfare Association v Secretary, Govt. of Andhra Pradesh (W.P.No.19829 of 1996, dated 28.10.1997), it is the duty of APHB to take action against encroachers who try to appropriate the appurtenant land for themselves ignoring the Regulations. The Regulations, however, do not contemplate coercive action, and APHB has to necessarily resort to the procedure contemplated under Sections 52 and 53 of the Act. Insofar as the alleged threat from the Assistant City Planner Circle IV is concerned, there cannot be any two opinions that if there is any violation of the provisions of the Hyderabad Municipal Corporations Act, 1955 (HMC Act, for brevity), necessary action has to be taken only in accordance with the provisions therein. For the above reasons, the Writ Petition is disposed of observing that APHB may take necessary action under Sections 52 and 53 of the Act. It shall also be open to the Greater Hyderabad Municipal Corporation to initiate action with regard to the constructions contrary to the provisions of HMC Act. Till such action is taken, it is needless to mention that the temporary sheds constructed by the petitioners cannot be removed coercively, nor petitioners can raise additional constructions. There shall be no order as to costs. _____________ (V.V.S.RAO, J) 20.10.2008 vs To 1 The Commissioner, Hyderabad Municipal Corporation, Hyderabad 2 Assistant City Planner, Circle-IV Municipal Corporation of Hyderabad, Kairthabad, Hyderabad-4 3 Prl. Secretary to Govt. of A.P., Housing Dept., Govt. of A.P., Secretariat, Hyderabad 4 Vice Chairman & Housing Commissioner, A.P. Housing Board, A.P. Housing Board, Gruhakalpa, Hyd 5 Dy. Executive Engineer (Housing) North Division, Sub Division- II,A.P.Housing Board, Bharatnagar, Hyderabad 6 2CCs to 7 2CD copies Form-NIC-OGS/WP{TRT}