*THE HONOURABLE SRI JUSTICE V.V.S.RAO +WRIT PETITION NO.4646 OF 2004 %18-09-2008 # DARSI SUDHAKAR RAO ..PETITIONER Vs. $ The Municipal Corporation of Hyderabad, Rep. by its Special Officer & Commissioner, Tank Bund Road, Hyderabad, and another. ..RESPONDENTS !COUNSEL FOR PETITIONER: MR.V.RAJAGOPAL REDDY ^ COUNSEL FOR RESPONDENTS 1 &2: MR.R.RAMACHANDRA REDDY, SC FOR MCH <GIST >HEAD NOTE: ?CASES REFERRED: 1. (1996) 6 SCC 185 : AIR 1997 SC 208 2. (2000) 2 SCC 699 : AIR 2000 SC 937 IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) THURSDAY, THE EIGHTEENTH DAY OF SEPTEMBER TWO THOUSAND AND EIGHT PRESENT THE HON'BLE MR JUSTICE V.V.S.RAO WRIT PETITION NO : 4646 of 2004 Between: Darsi Sudhakar Rao S/o. Late Rangaiah, R/o. Plot No. 459, Road No.19, Jubilee Hills, Hyderabad. ..... PETITIONER AND 1 The Municipal Corporation of Hyderabad, Rep. by its Special Officer & Commissioner, Tank Bund Road, Hyderabad. 2 The Asst. City Planner, circle No.5, Municipal Corporation of Hyderabad, Tank Bund Road, 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 will be pleased to issue a Writ, Order or direction more in the nature of Writ of Mandamus declaring the action of the 2nd respondent in issuing the Proc.No.293/82/A/459/2/8/2003-04/56, dt.24-2-2004 as illegal, arbitrary and unsustainable in the eye of law with a consequential direction to the respondents not to interfere with the ﬂooring and other ﬁnal touches etc. to the extension of ﬁrst ﬂoor and the ground ﬂoor of the Petitioner's building bearing No. Plot No.459, Road No.19, Jubilee Hills, Hyderabad Counsel for the Petitioner: MR.V.RAJAGOPAL REDDY Counsel for the Respondent Nos.1,2,4 and 6: R.RAMACHANDRA REDDY,SC FOR MCH The Court made the following Order: THE HON'BLE SRI JUSTICE V.V.S.RAO WRIT PETITION No.4646 of 2004 ORDER: The petitioner is owner of plot No.459, Road No.19, Jubilee Hills, Hyderabad. He constructed a residential house bearing door No. 8-2-293/82/A/459. On 28.08.2003, he submitted an application to Municipal Corporation of Hyderabad (MCH) now Greater Hyderabad Municipal Corporation (GHMC); seeking permission for extension of existing ground and ﬁrst ﬂoors. The application was rejected by a communication dated 04.09.2003. The Corporation raised three objections for granting permission. The petitioner, therefore, submitted a reply on 08.09.2003. He also submitted another letter on 15.09.2003. After waiting for sometime petitioner sent one more letter dated 04.10.2003 informing that he would be commencing construction strictly as per the plans on Vijayadasami day. In support of the same he quoted G.O.Ms.No.423 dated 31.07.1998 (G.O.,for short). He also requested for dispatch of discharge of approved plan. The Corporation did not respond. Ultimately by communication dated 24.02.2004 the petitioner was informed that his proposals for construction were already rejected on 04.09.2003 and he was requested not to proceed with any construction unless speciﬁc permission is obtained from the Corporation. Assailing the same he ﬁled instant writ petition. While the writ petition is pending before this Court it seems the Corporation issued demand notices dated 17.11.2006 for payment of property tax. The petitioner contends that when resubmitted plans were not rejected by Corporation, it shall be deemed to have approved/sanctioned and therefore, the construction undertaken by him is valid and cannot be treated as illegal. A counter-aﬃdavit is ﬁled by the Assistant City Planner, Circle V, GHMC, inter alia, stating that the deemed provision under Section 437 of the Hyderabad Municipal Corporation Act, 1955 (HMC Act, for brevity) has no application when the permission was speciﬁcally rejected immediately after receiving the application. Learned counsel for the petitioner relies on Bye-law 6.5 of the Municipal Corporation Building Bye-Laws, 1981 (Bye- laws, for brevity) and submits that after resubmission of the plans by the petitioner, the authority failed to pass orders or did not reject the plans, and therefore, the petitioner is deemed to have been granted permission. He also relies on para 2 of G.O. in support of the submission. Per contra learned standing counsel for GHMC submits that when once the building permission is rejected by the Corporation, the provisions of Section 437 of HMC Act and para 2 of G.O. have no application. The short point of considerable signiﬁcance that would arise for consideration is whether the Corporation is deemed to have granted permission to the petitioner for extension of ground and ﬁrst ﬂoors of his house by not rejecting resubmitted rejected building plans? Chapter XII (Sections 428 to 463) of HMC Act deals with building regulations. Every person intending to construct a building has to issue notice of such intention to the Corporation along with plans complying with Bye-laws. Section 433 of HMC Act requires such notice even when additions to a building are taken up. These applications are to be considered by the Commissioner in accordance with Bye-laws, MCH layout rules and relevant zonal regulations. As per Section 437 of HMC Act, the Commissioner has to pass necessary orders granting approval within 30 days after receipt of notice under Sections 428 or 433 of HMC Act. If such approval is not granted or if the building permission is not rejected within 30 days the provision enables the person applying for permission to proceed with the construction in accordance with the building plan but not so as to contravene any of the provisions of HMC Act or Bye-laws. This only means that when an order rejecting the building permission is not communicated within 30 days, the person applying such permission would not straightaway get absolute right to take up construction, he can only do so keeping in view HMC Act and Bye-laws. In a given case after building permission is rejected, a person has a right to resubmit the modiﬁed plans. Bye-law 6.5 requires the authority to scrutinize resubmitted plans and reject the same if there are further objections. It does not prescribe any time schedule nor it contains deemed provision. Para 2 of G.O. prescribes time limit for disposal of building plans; 15 days for industrial/residential buildings and 30 days for other buildings. If within the speciﬁed time the authority fails to intimate in writing to the applying person as to sanction or refusal of sanction, such application shall be deemed to have been sanctioned. A reading of Section 437 of HMC Act, Bye-law 6.5 and para 2 of G.O. would show that beneﬁt of deemed sanction/deemed permission is available only when the application seeking building permission is not rejected within 30 days after receipt of the same under Section 437 of HMC Act or as per para 2 of G.O. The same has no application when the building permission has already been speciﬁcally rejected within 30 days or within such other stipulated period. The petitioner made application on 28.08.2003 seeking permission for modiﬁcation/extension of his existing house. The same was considered and rejected by an order/communication dated 04.09.2003, which reads as under. MUNICIPAL COPORATION OF HYDERABAD O/o Asst. City Planner Town Planning Section, Cir.V, Khairthabad, Hyderabad. Lr.No.293/82/A/453/2/8/2003-2005 Dt.04.09.2003. To Sri D. Sudhakara Rao, Plot No.453, Road No.19, Jubilee Hills, Hyderabad. Sir, Sub: Buildings – MCH - T.P. Section- Circle No.V- Proposed Construction of first floor in premises No.8-2-293/82/A/459 situated at Jubilee Hills, Hyderabad- Regarding. Ref: Your building application dated 28.08.2003. ***** With reference to the building application cited, it is to inform that the proposals submitted by you for construction of ﬁrst ﬂoor in P.No.8-2-293/82/A/459 situated at Jubilee Hills Hyderabad are examined with reference to the building rules issued in G.O.Ms.No.423, MA, dated 31-7-1998, and the proposals is found to be in violation of the Rules as shown below: 1) To submit N.O.C. from the Society 2) The proposals are in violation of coverage i.e., more than 40%. 3) Your plot is sub-decided which require sub-division approval u/s 388 of NMC Act 1955 Hence, the permission applied for by you is refused and plans are returned. You are requested not to proceed with any type of construction unless speciﬁed permission is obtained from MCH. If any construction is made at site it will be treated as unauthorized construction and action will be initiated against it as per provisions of the HMC Act, 1955. Yours faithfully, XXX ASST. CITY PLANNER CIR.V, MCH After receiving the same the petitioner sent two representations on 08.09.2003 and 15.09.2003 duly submitting explanation as against the objections raised in the rejection order. These were considered and on 24.02.2004, yet another order/communication was passed by the Corporation, which reads as under. MUNICIPAL COPORATION OF HYDERABAD O/o Commissioner, (Town Planning Section, Cir.V), Khairthabad, Hyderabad. No.293/82/A/459/2/8/2003-05-56 Dated:24- 02-2004 To Sri D.Sudhakara Rao, Plot No.459, Road No.19, Jubilee Hills, Hyderabad. Sir, Sub:- Buildings – MCH – TP Section – Circle V – Proposed Construction of first floor in premises No.8-2- 293/82/A/459, situated at Jubilee Hills, Hyderabad Jubilee Hills, Hyderabad – Regarding. Ref:- 1. Your building application dated 28-8- 2003. 2. This office Letter No. even dated 4-9- 2003. 3. Your Letter dated 4-12-2003. *** With reference to the building application cited, it is to inform that the proposals submitted by you are refused vide reference 2nd cited on 4-9-2003 itself (within time) Xerox copy of the letter dated 4-9-2003 was enclosed by you along with your letter 3rd cited itself are evident that refusal letter received by you is in time. Hence, the permission applied for by you is refused and plans are returned. You are requested not to proceed with any type of construction unless speciﬁc permission is obtained from MCH. If any construction is made at site it will be treated as unauthorized construction and action will be initiated against it as per provisions of the H.M.C. Act 1955. Yours faithfully, XXX for COMMISSIONER, M.C.H. In both the above communications, the petitioner was speciﬁcally requested not to proceed with any type of construction unless speciﬁc permission is obtained from MCH. In such a situation Section 437 of HMC Act and para 2 of G.O. have no application because it is a case of action i.e., rejection of building permission and not a case of inaction attracting, legal ﬁction. It is well settled that when a legal ﬁction is created, while interpreting the same, Court cannot extend beyond the purpose for which it is enacted. It is also well settled that by interpreting a legal ﬁction in a statute, another ﬁction cannot be created by the Court. I n M.P. Ahmed v Kuthiravattam Estate Receiver[1], the Supreme Court observed as under. Rule of construction of provisions creating legal fictions is well settled. In interpreting a provision creating a legal ﬁction the Court is to ascertain for what purpose the ﬁction is created, and after ascertaining this, the Court is to assume all those facts and consequences which are incidental or inevitable corollaries to the giving eﬀect to the fiction. But in so construing the ﬁction it is not to be extended beyond the purpose for which it is created, or beyond the language of the section by which it is created. It cannot also be extended by importing another ﬁction. In this connection we may proﬁtably refer to two decisions of this Court. In the case of Commr. of Income Tax, Bombay City II v. Shakuntala, AIR 1966 SC 719 a three-Judge Bench of this Court speaking through S.K. Das, J., made the following pertinent observation in paragraph 8 of the Report: “The question here is one interpretation only and that interpretation must be based on the terms of the section. The ﬁction enacted by the Legislature must be restricted by the plain terms of the statute.” In another case reported in the same volume at page 870, namely, Commr. of Income-tax (Central), Calcutta v. Moon Mills Ltd., AIR 1966 SC 870 another three- Judge Bench of this Court speaking through Subha Rao, J., observed in para 8 of the Report in connection with the provision creating such legal fictions as under: “The ﬁction is an indivisible one. It cannot be enlarged by importing another fiction…” (emphasis supplied) In State of Maharashtra v Laljit Rajshi Shah[2] the rule of construction in interpreting the provision creating legal fiction is explained as follows. It is a well known principle of construction that in interpreting a provision crating a legal ﬁction, the Court is to ascertain for what purpose the ﬁction is created, and after ascertaining this, the Court is to assume all those facts and consequences which are incidental or inevitable corollaries to giving eﬀect to the ﬁction. But in so construing the ﬁction it is not to be extended beyond the purpose for which it is created, or beyond the language of the Section by which it is created. A legal ﬁction in terms enacted for the purposes of one Act is normally restricted to that Act and cannot be extended to cover another Act. Therefore, the construction made by petitioner, if any, cannot be treated as valid notwithstanding notice of construction dated 04.10.2003 issued by the petitioner under Section 440 of HMC Act. When building permission is rejected initially the question of issuing notice of construction under Section 440 of HMC Act does not arise. Even if MCH demanded and collected property tax for illegally extended ground and ﬁrst ﬂoors, the same cannot operate against MCH, because there can never be estoppel against statute. After giving anxious consideration, this Court is not able to countenance the submission of the learned counsel for the petitioner based on Bye-law 6.5. Said Bye-law has nothing to do with either under Section 437 of HMC Act or para 2 of G.O. Bye-law 6.5 gives option to the person whose permit application has been rejected to comply with the objections raised and resubmit the plan. It also casts a duty on the authority to scrutinize the resubmitted plan and pass appropriate orders. In this case appropriate orders are passed on 24.02.2004 informing the petitioner that the building permission is rejected and he should not make any type of construction. Bye-law 6.5 does not contain, as observed supra, any legal ﬁction as is available under Section 437 of HMC Act. In this writ petition challenge is to the communication dated 24.02.2004 which is legal, valid and does not suﬀer from any inﬁrmity. If so advised it is open to the petitioner to seek regularization under relevant Government Order/scheme in force subject to complying with the requirements of the said scheme. With the above observations, the writ petition is dismissed. No costs. _____________ (V.V.S.RAO, J) 18th September, 2008 Note: 1. LR copy to be marked. 2. Dispatch order copy in two weeks. (B/o) GHN To 1 The Municipal Corporation of Hyderabad, Rep. by its Special Officer & Commissioner, Tank Bund Road, Hyderabad. 2 The Asst. City Planner, circle No.5, Municipal Corporation of Hyderabad, Tank Bund Road, Hyderabad. 3 2CD copies Form-NIC-OGS/WP{SPJS} [1] (1996) 6 SCC 185 : AIR 1997 SC 208 [2] (2000) 2 SCC 699 : AIR 2000 SC 937