IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) MONDAY, THE TWENTY THIRD DAY OF JUNE TWO THOUSAND AND EIGHT PRESENT THE HON'BLE SRI JUSTICE B.SESHASAYANA REDDY WRIT PETITION No.7420 of 2008 Between: Sri Lakshminagar Cooperative Housing Society Ltd., Road No.3, Sri Lakshminagar Colony, Saidabad, Hyderabad, rep. by its Secretary, Y.S.R. Murthy, S/o. Y.R. Sharma, aged 61 yrs, R/o. 17-1-388/4, Road No.15, Sri Lakshminagar Colony, Saidabad, Hyderabad. ..... PETITIONER AND 1 The Greater Hyderabad Municipal Corporation, rep. by its Commissioner, Tankbund, Hyderabad. 2 The Greater Hyderabad Municipal Corporation, rep. by its Deputy Commissioner, Circle No.I, Sardar Mahal, Charminar, Hyderabad. 3 The Greater Hyderabad Municipal Corporation, rep. by its Chief City Planner, Tankbund, Hyderabad. 4 M/s. Fortune Constructions, rep. by its Managing Partner, Opp: Kranthi Towers, Near Bank of Baroda, Reddy Women's College Road, Barkatpura, Hyderabad. 5 Mr. M. Srinivas S/o. M.N. Rao, R/o. H.No.17-1-390/1, Saidabad, Hyderabad-59. .....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 issue a writ, order or direction, more particularly one in the nature of a Writ of Mandamus by calling for the records pertaining to building permit No.120/95 File O/86/CSC/79-2007, dt.25.02.2008 granted by the respondents 1 to 3 and declare the same as arbitrary and illegal since the said sanction is without any approach to the Municipal road and set aside the same. Counsel for the Petitioner: MR.S.SATYAM REDDY Counsel for the Respondents 1 to 3: MR.R.RADHA KRISHNA REDDY Counsel for the Respondents 4 and 5: MR.B.V.V.S.MURTHY The Court made the following: THE HON’BLE SRI JUSTICE B.SESHASAYANA REDDY WRIT PETITION No.7420 of 2008 ORDER: This writ petition has been filed by Sri Lakshminagar Cooperative Housing Society Limited with a prayer to issue writ, order or direction, more particularly, in the nature of writ of Mandamus declaring the building permission No.120/95 File O/86/CSC/79-2007, dated 25.02.2008, granted in favour of M/s. Fortune Constructions – respondent No.4 and M. Srinivas – respondent No.5, as illegal. 2. One Y.S.R. Murthy has sworn to the affidavit filed in support of the writ petition. The affidavit, in brief, is that the petitioner Society was formed in the year 1964 for the purpose of providing house sites to its members. The Society purchased land in Sy.No.197 admeasuring 36,498 sq.yards from the registered owner under registered sale deeds bearing document Nos.379, 380, 381, 382, 383, 384, 1231, 1232, 1333, 1334, 3112 of 1967. The petitioner Society submitted a layout plan to the 1st respondent- Greater Hyderabad Municipal Corporation, by dividing the said land into 52 plots and got the layout approved vide permit No.1745/Open/16167, dated 29.09.1967. Thereafter, plots were allotted to the members and the members constructed houses. Plot No.52 admeasuring 138 sq.yards has been retained by the Society for community purposes. A building has been constructed in part of the said plot and remaining land is kept vacant for future requirements of the Society. While so, M/s. Fortune Constructions – the 4th respondent and M. Srinivas – the 5th respondent started proceeding with the construction in the plots owned by them. Thereupon, the petitioner Society made a complaint to the respondents 1 to 3, on 26.10.2007, not to permit the respondents 4 and 5 to make any constructions, since their plots have no access to the road. The constructions came to be stopped. However, the respondents 1 to 3 sanctioned building permission and, thereupon, the respondents 4 and 5 continued the construction. Hence, the writ petition. 3. Notice before admission came to be ordered on 04.04.2008. 4. The respondent No.2 filed counter-affidavit. It is stated in the counter-affidavit that the petitioner Society itself made some unauthorized constructions in plot No.52 and encroached 60 feet wide road on the northern side. Paragraphs 3 and 4 of the counter-affidavit are to be noted and they are thus: “It is further submitted that the construction made in plot no.52 by the petitioner society is without obtaining permission U/s. 328, 423 & 392 of the Hyderabad Municipal Corporation Act. In fact shop rooms are constructed on the road margin by reducing the width of the road from 50 feet to 46.6 feet towards western side, by encroaching upon the road margin upto 3.6 feet showing the area of construction made in plot No.52 is more than 138 sq.yards Apart from that the petitioner society has also has encroached the 60.0 wide road on the northern side as marked in the layout plan with yellow shade, as a result there is no remaining open space is kept for petitioner society. Hence, the contention of the petitioner society that it has constructed a building on the part of the plot No.52, admeasuring 138 sq.yards and remaining open area is kept vacant is totally false and incorrect, and the petitioner society put strict proof of the same. It is further respectfully submitted that the respondent Corporation has granted building permission in file No.186/CSC/TPI/2007 dated 25.05.2008 for construction of stilt+4 upper floors to the 5th respondent on the 50 feet wide road, while taking into consideration the 5th respondent has already obtained building permission vide File No.112/Open/10/71, permit No.9/20 of 1971 dated 10.02.1971 for construction of ground floor duly maintaining 50 feet road.” 5. Heard the learned counsel appearing for the petitioner and the learned Standing Counsel appearing for the respondents 1 to 3. 6. Learned counsel appearing for the petitioner submits that the respondents 1 to 3 considered the building permission application of the respondents 4 and 5, though the sites owned by them do not have access from any of the roads. A further submission has been made that the respondents 4 and 5 are proceeding with the constructions in violation of the sanctioned plan. 7. Per contra, learned Standing Counsel appearing for the respondents 1 to 3 submits that the petitioner Society itself has made constructions in plot No.52 without obtaining any permission and it has also encroached 60 feet wide road on the northern side. 8. According to the petitioner Society, it set apart plot No.52 for community purposes. The 2nd respondent has specifically pleaded in the counter-affidavit that the petitioner Society proceeded with construction in plot No.52 without obtaining any permission and also encroached 60 feet wide road on the northern side. These are all seriously disputed facts which are required to be adjudicated by way of full-pledged trial in a Civil Court. The petitioner Society is at liberty to workout remedies available in Civil Court in case the constructions made by the respondents 4 and 5 intrude the privacy of its members. 9. With the above observation, the writ petition is dismissed at the stage of admission. No order as to costs. ________________________ B. SESHASAYANA REDDY, J 23rd June, 2008. IBL To 1 The Commissioner, Greater Hyderabad Municipal Corporation, Tankbund, Hyderabad. 2 The Deputy Commissioner, Greater Hyderabad Municipal Corporation, Circle No.I, Sardar Mahal, Charminar, Hyderabad. 3 The Chief City Planner, Greater Hyderabad Municipal Corporation, Tankbund, Hyderabad. 4 Two CD Copies