IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) SATURDAY, THE EIGHTEENTH DAY OF OCTOBER TWO THOUSAND AND EIGHT PRESENT THE HON'BLE MR JUSTICE B.SESHASAYANA REDDY WRIT PETITION NO : 1936 of 2007 Between: T.S.C. Chatterjee S/o. Late T.V. Krishna Rao ..... PETITIONER AND 1 Municipal Corporation of Hyderabad, Rep. by its Commissioner, Tank Bund , Hyderabad. 2 The Chief City Planner, Municipal Corporation of Hyderabad, 3 Asst. City Planner (Planning) Circle No. 5, Municipal Corporation of Hyderabad, 4 Dr. Mir Masood Ali, S/o. Not known to the petitioner, R/o. 8- 2-693/PC/7, Plot N. 7,. Banjarahills, Hyderabad. 5 Mr. Irfan S/o. Not known to the petitioner, R/o. Plot No. 7 (8- 2-693/PC/7) Banjarahills, Hyderabad. .....RESPONDENT(S) 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 to issue writ order or direction more particularly one in the nature of writ of Mandamus declaring the inaction of the respondents 1 to 3 in not taking action against the 4th and 5th Respondent in spite of the complaints dt. 11-6-2006 and 17-6-2006 as illegal, null, void and consequentially direct the respondents to remove the unauthorized construction in Plot No. 7 (House No. 8-2-693/PC/7) Mithilanagar, Road No. 12, Banjarahills, Hyderabad and to pass such other order or orders as this Hon'ble Court may deem ﬁt and proper in the circumstances of the case. Counsel for the Petitioner:MR.K.DURGA PRASAD Counsel for the Respondent No.: SMT.G.JYOTHI KIRAN The Court made the following : O R D E R: The Writ Petitioner is a company registered under the Companies Act and it is represented by its Director- T.S.C.Chatterjee. The petitioner-company purchased Plot No.8 in S.No.129/77 situated at Road No.12, Banjara Hills, Hyderabad under three registered sale deeds with document Nos.389, 390 and 391 of 1996 admeasuring 999.99 square meters. Plot Nos.6 and 7 are adjacent to plot No.8. The owner of plot No.7 obtained building permission and constructed a house in part of the plot and kept the other part open. The area kept open admeasures 400 square yards. Mr.Irfan-5th respondent started construction in plot No.7 in the left over open space of 400 square yards. According to the petitioner, R5 commenced construction in the left over space of 400 square yards without obtaining sanction from Hyderabad Municipal Corporation-1st respondent. The petitioner sent a complaint to R1 on 11.6.2006 and 17.6.2006. The authorities of 1st respondent did not initiate any action on the complaints made by the petitioner. The grievance of the petitioner is that the constructions made by R5 is blocking its plot. For better understanding of the grievance of the petitioner, I deem it appropriate to refer relevant portion of the writ aﬃdavit ﬁled in support of the writ petition, which reads as under: “ A complaint was sent to the 1st respondent on 11.6.2006 and 17.6.2006 through e Mail by my other partner i.e. Mr.Prabhakar. The same was registered vide Regd.No.06COM3045. The said complaint was received by the Commissioner and referred to the 3rd respondent by the 1st respondent on 29.6.2006 and 30.6.2006. The said information was received by me through internet and the same is ﬁled as material papers. The said complaint is also ﬁled as material paper along with this aﬃdavit. Subsequently, I approached the authorities number of times and no action is taken against 4th and 5th respondents. The construction is going on and the site open spaces are not left by the respondents 4 and 5 and due to that I am the eﬀected person as my plot is blocked by their wall. I submit that my plot is having 1196 square yards and the plot No.7 belongs to 4th and 5th respondents is of 500 square meters now they are constructing building in the entire 500 square meters without leaving any set backs i.e. side open spaces as per law. If the construction is continued I will be put to grave and irreparable loss and the building will cause inconvenience to my property. The 1, 2nd and 3rd respondents are not taking any action against the 4th and 5th respondents and the construction is continuing in plot No.7 day and night and the same can be seen from the photographs, which were ﬁled by me. The respondents 1 to 3 are not acting according to the municipal laws and they are not performing their duties properly and permitting the 4th and 5th respondents to construct the house illegally. Therefore, having no other eﬀective alternative I am forced to file this writ petition.” When this writ petition came up for admission on 5.2.2007, learned Standing Counsel of Greater Hyderabad Municipal Corporation received notice on behalf of R1 to R3. Md.Khalid Sarwar has sworn to the counter aﬃdavit ﬁled on behalf of R1 to R3. It is stated in the counter aﬃdavit that original plot No.344 was divided into 8 plots as per the approved lay out. The owners of plot No.7 have obtained permission vide permit No.105/17 in ﬁle No.693/PC/7/2/8/2005 dated 11.3.2005 for construction of ground, ﬁrst and second ﬂoors in an extent of 499.99 square meters. Subsequently, R5 appears to have purchased part of plot No.7 admeasuring 334.45 square meters on the northern side without any sub-division of the said plot. R5 started construction without taking prior approval from the respondent-corporation. The construction made by R5 is in violation of sections 428, 433 and 338 of HMC Act. The 5th respondent constructed the building without leaving any mandatory open space as required under G.O.Ms.No.423 MA, dated 31.7.1998. The short fall in the open spaces is as follows: Side Open space Required under G.O.423, MA Open spaces Provided Shortfall Remarks F(E) 20’ Rd. 3.00 mts 0m to 2.4 m 1.8 m to 2.1 m -- Rear 9W) 3.00 mts 1.77m to 1.72 m 3.8m to nil -- Side (N) 4.14 mts. 1.6m to 1.29m 3 m to 4.1 m -- Side (S) 1.50 mts 1.3 m to 1.5 m 0.2 m to 0 m -- A notice under section 461 of HMC Act was issued to R5 on 5.2.2007 to stop further construction and to submit the sanctioned plan for veriﬁcation. The owners did not submit any plan and as such show cause notice u/s 452 of HMC Act was issued on 7.2.2008 detailing the deviations and unauthorized constructions. Further action will be initiated after considering the explanation, if any, filed by R5. R4 did not chose to ﬁle any counter aﬃdavit. R5 ﬁled counter aﬃdavit in WPMP.NO.16037 OF 2008. Learned counsel appearing for R5 submits that the counter aﬃdavit ﬁled in the said petition be treated as a counter aﬃdavit in the writ petition. It is stated in the counter aﬃdavit that the constructions are being carried on in accordance with the sanctioned plan bearing No.105/17 dated 11.3.2005. Para 9 of the counter needs to be noted and it is thus: “9. We are carrying on construction in the land purchased by us. We are constructing a single habitable house intended for residence of our family. We have purchased 400 square yards of land from one Mrs.masarathunnisa Begum vide sale deed executed on 12th January 2006. There is already a sanction accorded by the Municipal Corporation bearing No.105/17 dated 11.3.2005. The construction carried on by us accords with this sanction. After sale of the property to us another 200 square yards of land was sold by Mrs.Masarathunnisa Begum to the wife of R4 vide sale deed executed on 2nd May 2006. It appears that the R4 has constructed a house in 200 square yards of land purchased by her. Hence, it is now claimed by the petitioner that we cannot be permitted to construct a house in 400 square yards of land purchased by us because R4 has used the entire FSI as per the original sanction given in the name of Mrs.Masarathunnisa Begum in her 200 square yards of land. While we dispute this allegation we submit we cannot be found fault with for any construction carried on by R4. We are not concerned with the extent of construction carried on by R4 in her 200 square yards of land. The petitioner cannot allege that we should not be permitted to construct our house in 400 square yards of land. We have not purchased the land for keeping it idle. The petitioner has been adopting questionable tactics. He has foisted this litigation for extracting moneys from us for which he is making repeated demands.” Heard learned counsel appearing for the petitioner and learned Standing Counsel for GHMC for R1 to R3 and learned counsel appearing for R5. Learned counsel appearing for the petitioner submits that R5 cannot make use of the sanctioned plan obtained by his vendor since the said sanction had already been used to construct a premises therein. A further submission has been made that since the vendor of R5 had already made use of the sanctioned plan and constructed the building R5 cannot be permitted to make use of the same for making further constructions. Learned counsel appearing for R5 seriously disputes the maintainability of the writ petition by the petitioner. This contention has been negatived by this Court in WPMP.NO.21810 OF 2008 and therefore the said contention needs no consideration for adjudication of this writ petition. He would also contend that the petitioner submitted application for regularization of the constructions made in deviation of the sanctioned plan and pending consideration of the said application any coercive steps by R1 to R3 may cause prejudice to R5. A fact remains that R5 has not obtained building permission from R1 to R3. He commenced construction basing on the building permission obtained by his vendor. Indisputably vendor has larger extent and he sold part of it to R4 and another part to R5. It is explicit from the counter aﬃdavit of R1 to R3 that the constructions made by R5 are in violation of the building permission obtained by the original owner. Variations in the constructions have been detailed in the counter aﬃdavit ﬁled by R1 to R3. Indeed a notice under section 461 of HMC Act has been caused to R5 detailing the deviations and unauthorized constructions being made by him. It is for R5 to respond to the notice and invite orders thereon from R1 to R3. In that view of the matter, this writ petition is disposed of directing R1 to R3 to consider the explanation, if any, ﬁled by R5 to the notice issued under section 461 of HMC Act and to pass appropriate orders. If R5 has not ﬁled any objections so far he is at liberty to ﬁle the same within two weeks and thereafter R1 to R3 shall dispose of the objections within four weeks. 18th October, 2008. (B.Seshasayana Reddy,J) cc in three days. tnb ..... REGISTRAR // TRUE COPY // SECTION OFFICER To 1.2CCs to 2.2CD copies Form-NIC-OGS/WP{VSMI} THE HONOURABLE SRI JUSTICE B.SESHASAYANA REDDY WRIT PETITION NO.1936 OF 2007 18T H OCTOBER, 2008