THE HONOURABLE SRI JUSTICE N.V. RAMANA WRIT PETITION No.994 of 2010 ORDER: Petitioner claims to have constructed an apartment namely ‘Tirumala Towers’ bearing H.No.1-4-1011 situated at Golconda Cross Roads, Musheerabad, Hyderabad, in an extent of 1529 square yards, out of the total extent of 3225 square yards of land owned by him, after obtaining due permission from the authorities concerned. He states that since there were certain deviations in the said building, he applied for regularization of those deviations in the year 1988 and, upon the respondent Corporation raising an objection that no sufficient parking place is provided as per the sanctioned plan, he provided 2750 sq. ft., from out of the remaining extent of land held by him, as required by the Corporation, towards alternative parking space, and thereupon the respondent Corporation regularized the deviations in the subject building. While so, the petitioner states that, in the year 2007, the respondent authorities, at the instance of some of the flat owners in the subject apartment, who have not purchased parking place for their flats but are forcibly using the parking place in the subject apartment, have issued notice under Section 636 of the Hyderabad Municipal Corporation Act, 1955 (for short ‘the Act’), directing him to remove the deviations in the parking place that were already regularized, without issuing notice under Section 452 of the Act, and demolished some of the rolling-shutters in the parking place. The petitioner, thereupon, filed a suit in O.S.No.2475 of 2007 on the file of VI Junior Civil Judge’s Court, Hyderabad, against the respondent authorities, for damages, and the same is still pending adjudication. Now, it is the grievance of the petitioner that the respondents have again issued a notice under Section 636 of the Act, dated 19.01.2010, directing him to remove the unauthorized structures in the parking place, in respect of which regularization has already been effected, within three days, and that no notice preceded the said impugned notice, calling for his explanation as to why the impugned structures shall not be removed. While issuing notice before admission on 25.01.2010, this Court directed the respondents to maintain status quo with regard to structures covered by the impugned notice. During the pendency of the writ petition, the Tirumala Towers Flat Owners Association got impleaded on its own, as respondent No.4 in the writ petition. In its counter-affidavit filed in support of the vacate stay petition filed by it, seeking to vacate the interim order of status quo, while making certain allegations about the petitioner not properly maintaining the subject building during the relevant period, it is stated that the petitioner converted the stilt meant for parking, into office, godown and clinic for his son-in-law and also constructed two residential flats against the sanctioned plan. When there was inaction on the part of the Corporation in disposing of the representation submitted by it against the said unauthorized constructions made by the petitioner, it has filed a writ petition in W.P.No.26804 of 2009 before this Court and in view of issuance of the impugned notice, the same was disposed of on 29.01.2010, recording that a notice was already issued by the Corporation for removal of the unauthorized constructions. But however, as seen from the impugned notice, it transpires that it is a general notice issued in pursuance of the orders of this Court in some other writ petition in W.P.No.4795 of 1996 and suo motu contempt case No.101 of 1996 and C.M.A.No.10 of 2008, and there is no reference to the representation given by it, and therefore it has filed review petition in W.P.26804 of 2009, which is pending. It is further stated that the regularization, which the petitioner states to have been effected, relates to deviations in respect of the balconies only and there cannot be regularization of the areas meant for common parking. Having regard to the facts and circumstances of the case, this Court thought it appropriate to ascertain as to what area in the building is available for parking and accordingly, on 24.08.2010, directed the 3rd respondent- Assistant City Planner, Circle-IX, GHMC, to inspect the building in question, note down the constructions made by the petitioner in deviation of the sanctioned plan, whether they are minor deviations or major deviations and further measure the entire area left open by the petitioner for parking as per the sanctioned plan and undertaking given by him, and whether the parking area earmarked is sufficient for parking, and submit a report within a period of two weeks. Such inspection was directed to be conducted in the presence of the petitioner and the impleaded respondent. Accordingly, the 3rd respondent conducted inspection and filed report, stating that 928 sft., of place was converted for commercial purpose and 1285 sft., of parking area has been converted into flats and a servant room, which are unapproved. The report, however, indicates that the area to be left for parking in the subject apartment as per the sanctioned plan is 5007.79 sft., and that the actual parking area in the apartment is 2520 sft., and alternative parking space provided in the adjacent land is 2750 sft., and thus the total parking area provided is 5270 sft. Along with the report, the 3rd respondent filed the plan relating to the subject building, indicating the existing parking area in yellow ink, unapproved portions in red ink and approved portions in black ink. Learned counsel for the 4th respondent Association raised objections to the above report and plan of the 3rd respondent and stated that the ground position is not reflected in the plan and that the areas, which are shown to be available for parking in the plan, are not available on ground. Learned counsel for the petitioner denied the contentions of the learned counsel for the 4th respondent and submitted that even according to the report and plan submitted by the 3rd respondent, the area provided for parking is more than the parking area specified in the sanctioned plan. Heard the learned counsel for the petitioner, the learned Standing Counsel appearing for the respondent Corporation and the learned counsel appearing for the 4th respondent. As is evident from the rival contentions of the parties, there appears to be serious dispute as regards parking place in the subject building. While the report and plan submitted by the 3rd respondent indicate that the petitioner provided parking place in excess of the required parking place, the 4th respondent Association seriously disputes the said report and plan, contending that they do not indicate the ground realities and sufficient parking place is not provided in the subject building. This being the situation, the questions whether or not the report and plan submitted by the 3rd respondent reflect the actual ground position and whether or not the parking place provided by the petitioner is sufficient as per the sanctioned plan, being disputed questions of fact, cannot be decided by this Court in the present petition under Article 226 of the Constitution of India and the parties have to avail their remedies in this regard in appropriate proceedings. However, so far as the unapproved constructions in the common area of the subject building as indicated in the plan are concerned, they have to be removed by the respondent Corporation, as they cannot be regularized under any regularization scheme. Accordingly, the respondent Corporation is directed to take necessary action for removal of the unauthorized/unapproved constructions in the common area of the subject building. The writ petition is accordingly disposed of. No order as to costs. __________________ JUSTICE N.V. RAMANA 22nd September, 2010 IBL