HON'BLE SRI JUSTICE C.V.NAGARJUNA REDDY WRIT PETITION No.4364 of 2011 Date:04.08.2011 Between: Sri Mahesh P.Sanghvi ..... Petitioner AND Greater Hyderabad Municipal Corporation, Hyderabad And five others. .....Respondents Counsel for the Petitioner: Sri Ravi Prakash Misra Counsel for Respondent Nos.1& 2: Sri C.Damodar Reddy, Standing Counsel for GHMC Counsel for Respondent Nos.4 to 6: Sri M.V.S.Suresh Kumar Counsel for Respondent No.3: None appeared The Court made the following: ORDER: This writ petition is filed for a Mandamus to declare the action of respondent Nos.1 to 3 in permitting construction activity by respondent Nos.4 to 6 in premises bearing H.No.3-6-240, Himayathnagar, during night hours from 6 pm to 7 am as illegal and arbitrary. The petitioner sought for a consequential direction to respondent Nos.4 to 6 and their men not to carry on the construction activity in the above-mentioned premises during night hours. I have heard Sri Ravi Prakash Misra, learned counsel for the petitioner, Sri C.Damodar Reddy, learned Standing Counsel for Greater Hyderabad Municipal Corporation, appearing for respondent Nos.1 and 2 and Sri M.V.S.Suresh Kumar, learned counsel for respondent Nos.4 to 6. The petitioner is a resident of premises bearing H.No.3-6-240, Lilam Villa, Himayathnagar, Hyderabad. Respondent Nos.4 to 6 started construction of a building comprising 2 + 5 floors in the premises adjacent to the petitioner’s house. When the retaining wall of the petitioner collapsed during the execution of work by respondent Nos.4 to 6, the petitioner filed a suit for mandatory injunction for reconstruction of the wall and recovery of the damages. The said suit seems to be pending before the competent civil Court. In the present Writ Petition, the petitioner felt aggrieved by carrying on construction activity by respondent Nos.4 to 6 during the night hours. The petitioner has complained that on account of such construction during night time, the petitioner and his family members are denied proper sleep leading to health problems such as heart ailments. While no counter-affidavit has been filed by respondent Nos.1 to 3, a counter-affidavit has been filed respondents 4 to 6, wherein it is inter alia stated that even in the suit filed by the petitioner i.e., O.S.No.710 of 2010 in the Court of the learned III Additional Chief Judge, City Civil Court, Hyderabad, the petitioner referred the letter, dated 11.03.2010, addressed by the Director of respondent No.5-Company to the effect that respondent Nos.4 to 6 have stopped carrying out construction work during night hours. Respondent Nos.4 to 6 while denying the allegation that they have started construction/blasting/drilling/cent ring/metal cutting and working illegally during night hours stated that the structure has been completed on a major portion of the site; that the construction has to be made on the front side where the material has been dumped for construction activity; and that the entire construction activity for the left over portion will be undertaken by them only during day time. It is further stated that slabs have to be laid with the help of ready concrete mixtures for seven roofs and that, for laying such slabs, vehicles have to come only in the night time in view of heavy traffic during day time. These respondents, therefore, sought for leave of the Court to permit them to lay the roofs which are seven in number with an interval of 25 to 30 days during one night each while undertaking that there will not be any construction activity between 7 pm and 6 am on the day following laying of the roofs. At the hearing, Sri Ravi Prakash Misra, learned counsel for the petitioner, strenuously contended that Section 2 (35) of the Greater Hyderabad Municipal Corporation Act, 1955 (for short ‘the Act’) defines “nuisance” as including any act, omission or place or thing which causes or is likely to cause injury, danger, annoyance or offence to the sense of sight, smell, or hearing or disturbance to rest or sleep or which is or may be dangerous to life or injurious to health or property of the public or of persons in general who dwell in the vicinity, or occasion to exercise a public right. Learned counsel also relied upon Section 504 of the Act under which the Commissioner is empowered to issue a notice in writing to the person by whose act, default or sufferances, a nuisance arises, exists or continues or is likely to arise, and take such measures as are necessary to ensure execution of such work in such manner and within such period of time as the Commissioner may specify in such notice. Sri M.V.S.Suresh Kumar, learned counsel for respondent Nos.4 to 6, submitted that from the time of the petitioner raising objections to the execution of the work during night time, respondent Nos.4 to 6 have stopped the work at night time and that, on the rear portion, major part of the work has been completed and it is only in the front portion that seven slabs need to be raised. He further submitted that as Himayathnagar being a very busy place, where there will be heavy traffic during day time, it is impossible for respondent Nos.4 to 6 to get the roofs laid through ready concrete mixtures, which are transported through trucks, during day time. Undoubtedly, execution of construction works during night time causes serious problems to the neighbours. This Court can well appreciate the grievance of the petitioner in this regard. However, it is not disputed by the petitioner that after his taking steps to prevent execution of works during night time by filing a civil suit, respondent Nos.4 to 6 have confined their work to day time. This Court has perused the photographs of the site submitted by the learned counsel for the petitioner and is convinced that it may not be possible for the trucks carrying the ready concrete mixtures to enter the said premises during day time for the purpose of laying the roof. Therefore, during day time, it may not be possible for respondent Nos.4 to 6 to lay the roofs with the help of ready concrete mixtures as Himayath Nagar where the work is in progress is known for its heavy traffic. Even though in technical sense, disturbance to the sleep of the petitioner and his family members may fall within the definition of “nuisance”, I am of the opinion that in real sense the word “nuisance” connotes an intentional act on the part of a person to cause such disturbance to sleep or other kinds of inconveniences which may pose danger to life or cause injuries to health or property of others. As this Court feels that respondent Nos.4 to 6 may not be in a position to lay the roofs during day time, their request to permit them to execute the work of laying roofs during one night for each slab is reasonable. Under the inevitable circumstances, interest of justice would be met, if respondent Nos.4 to 6 are permitted to carry such work strictly as per the undertaking given by them in paragraph No.7 of their counter-affidavit. Accordingly, respondent Nos.4 to 6 shall give an advance notice to the petitioner at least 24 hours before each slab is proposed to be laid. They shall also take all the measures that may be required to control the noise and ensure that as little disturbance as possible is caused to the petitioner and his family members while laying the roofs during night time. If respondent Nos.4 to 6 violate these directions, the petitioner shall be free to move this Court for appropriate orders. With the above directions, the writ petition is disposed of. As a sequel to disposal of the writ petition, W.P.M.P.No.5400 of 2011 filed by the petitioner for interim relief is dismissed and W.V.M.P.No.2359 of 2011 filed by respondent Nos.4 to 6 is disposed of as infructuous. __________________________ C.V.NAGARJUNA REDDY, J 04th August, 2011 DR