HON’BLE SHRI G.S.SINGHVI, THE CHIEF JUSTICE AND HON’BLE SHRI JUSTICE C.V. NAGARJUNA REDDY WRIT PETITION No.17597 OF 2006 Between: Y. Jyothirmoy and others. …Petitioners AND The Municipal Corporation of Hyderabad, Hyderabad, represented by its Commissioner and another. ...Respondents : O R D E R : Counsel for the petitioners : Sri P.Giri Krishna Counsel for respondent No.1 : Smt.G.Jyothi Kiran Counsel for respondent No.2 : None. 19th January, 2007 Per G.S.SINGHVI, C.J. The petitioners, who purchased different portions of the building known as Amrutha Business Complex, Ameerpet have filed this petition for quashing notice dated 22-8-2006 issued by Commissioner, Municipal Corporation of Hyderabad (hereinafter referred to as ‘the Commissioner’) under Section 636 of the Hyderabad Municipal Corporation Act, 1955 (for short, ‘the 1955 Act’) requiring them to demolish/remove/pull down the unauthorised construction not covered by the sanctioned plan within 24 hours of the date of receipt of the notice with the threat that if they fail to do so, Municipal Corporation of Hyderabad (for short, ‘the Corporation’) will take action and demolish/pull down such construction and also recover expenditure from them. The background facts: i) Sri Y.S.Rajesh Reddy, son of Sri Y.S.Anand Reddy, Sri K.Sudhakar Reddy, son of Dr.K.L.Reddy, Ms. K.Sunitha Reddy, daughter of Dr.K.L.Reddy and Sri Y.S.Anand Reddy, son of Sri Y.S.Konda Reddy purchased property measuring 1650 square yards bearing premises No.7-1-58 (old No.F-1- 58) situated at Ward No.7, Block No.1, Ameerpet, Hyderabad from the original owners through separate registered sale deeds. They surrendered 380 square yards for road widening purpose and then entered into a development agreement with M/s.Amrutha Estates (Developer), a registered partnership firm for re-development of the property by constructing cellar, ground plus three upper floors residential building. ii) Sri Y. S. Rajesh Reddy and three others through their GPA holder, Sri R.Narasimha Reddy submitted building plan for construction of a multistoreyed building. The then Commissioner of the Municipal Corporation of Hyderabad (for short, ‘the Corporation’), vide his order dated 27-6-1987 accorded permission to the applicants for construction of cellar, ground plus three upper floors. However, the building was constructed in violation of the sanction accorded by the Commissioner, the provisions of the 1955 Act, Regulation 11 of the Zoning Regulations, 1981 and Regulation 12 of the Multistoreyed Building Regulations, 1981. Thereafter, different portions were sold to the petitioners and others by registered sale deeds and almost the entire building was put to commercial use and named as Amrutha Business Complex. iii) In 1997, the authorities of the Corporation threatened demolition of the construction on the ground of violation of the sanctioned plan and change of use from residential to commercial. Therefore, a suit for perpetual injunction was filed in the Court of Additional Judge, City Small Causes Court-cum-VI Senior Civil Judge, City Civil Court, Hyderabad in the name of M/s.Amrutha Estates for restraining the defendant i.e., the Corporation from interfering with possession of the plaintiff. The same was registered as O.S.No.1925 of 1997. It was pleaded that the construction had been completed within three years from the date of issue of sanctioned plan; that the persons who had purchased apartments had shifted their residences and put the premises to commercial use, and that the authorities of the Corporation were trying to demolish the property. In the written statement filed on behalf of the Corporation, it was averred that the construction had been made in violation of the sanctioned plan; that there was change of the user of the suit site; that cellar floor had been converted into shops and offices against the sanctioned plan, and that even before issue of notices under Sections 452, 461 and 636 of the 1955 Act, the plaintiff had approached the Court. iv) On the pleadings of the parties, the trial court framed the following issues: 1. Whether the plaintiff has violated the Rules, Building bye- laws, Zoning Regulations of 1981 and deviated from sanctioned plan and permit? 2. Whether the plaintiff changed the user of the property? 3. Whether the plaintiff is entitled for perpetual injunction as prayed for? 4. To what relief? The trial judge noted that the allegation made by the defendant regarding change of the user of the suit site and converting the cellar portion into shops and offices, which resulted in violation of the Building Rules, 1981 and Zoning Regulations, 1981 has not been substantiated. The learned trial judge took cognizance of the statement of P.W.1 K.Bhanu Murthy that the construction had been made strictly in accordance with the sanctioned plan and the fact that the defendant did not lead any evidence to substantiate the allegation of deviation from the sanctioned plan and decided issue No.1 in favour of the plaintiff. The relevant extracts of the finding recorded by the learned trial judge are reproduced below: “…………………..It is for the defendant to prove as to when the inspection of its officials was made and found the alleged deviation. Further, the defendant ought to have stated specifically as to which of the Building Rules and Zoning Regulations that is violated. The defendant did not at all give all such details and further did not choose to adduce any evidence, but the statement of P.W.1 that the residents of suit premises shifted their residences in view of the increase in the commercial activity in the area by converting their portions into commercial ones would indicate that there was user of the premises for commercial purpose. If, according to the defendant, the plaintiff made conversion of the cellar floor into shops and offices, he ought to have taken action when construction for conversion of the floor was commenced. The pleadings and evidence of the plaintiff does not show that there are shop rooms and office rooms constructed in the cellar. So, it is for the defendant to prove by positive evidence the existence of those constructions in the cellar. As already mentioned above, the defendant did not choose to adduce any evidence on his behalf.” (emphasis supplied) The learned trial judge also held that the change of user of certain portions of the building from residential to commercial did not justify an action for demolition after eight years of the completion of construction. Accordingly, he decreed the suit and restrained the defendant and its officers from interfering with the structure of the scheduled premises. v) It is borne out from the record of the case that while disposing of Contempt Case No.101 of 1996 vide order dated 28-2-1996 and Writ Petition No.4795 of 1996 vide order dated 8-3-1996, this Court issued general directions for creating parking areas by demolishing the constructions made in the stilts and cellars of multistoreyed buildings. vi) Faced with the threatened demolition of the constructions made by them in violation of the sanctioned plan and the provisions of the 1955 Act, the Andhra Pradesh Municipalities Act, 1965 and the rules and regulations framed under the two statutes, the builders and others approached the political and executive apparatus of the State and succeeded in persuading them to issue G.Os. including G.O.Ms.No.419, MA, dated 30-7-1998 for regularisation of such constructions. The validity of that G.O. was challenged by Dr.C.Kulsum Reddy and others in Writ Petition No.25011 of 1998 on the ground that the State Government does not have the power to regularise the illegal and unauthorised constructions. A Division Bench of this Court considered the issue in the reported judgment titled Dr. C.Kulsum Reddy v. State of Andhra Pradesh[1] and held as under: “The Act provides a definite mode for making constructions and if that mode is not followed there would be consequences. Every citizen needs a permission from the municipality to construct and if such construction is made without permission the only consequence is the demolition of such building in addition to prosecution in terms of various provisions of the Act. Therefore, Government can issue directions in furtherance of the objective that no construction is made in the city without permission of the Municipal authorities, but it cannot subvert the Act itself and then take refuge under Section 679-E by saying that the Government has the power to issue directions.” vii) With a view to overcome the aforementioned judgment of the High Court, the Governor of Andhra Pradesh, on the advice of the State Government, promulgated the Unauthorised Constructions in Municipal Corporations, Municipalities and Urban Development Authorities Ordinance, 2003 (A.P. Ordinance No.1 of 2003). This was replaced by the Andhra Pradesh Regularisation of Unauthorised Constructions in Municipal Corporations, Municipalities and Urban Development Authorities Act, 2003 (Act No.6 of 2003) (for short, ‘the 2003 Act’). The prefatory note, which constitutes the foundation of the 2003 Act, reads as under: “An Act to provide for the regularisation of the unauthorised constructions made in the areas of Municipal Corporations, Municipalities and Urban Development Authorities and the matters connected therewith and incidental thereto. Whereas the Government in G.O.Ms.No.87, MA & UD Department, dated the 12th February, 1992, have formulated a scheme to regularise the unauthorised constructions on the plots of the size of 100 sq. meters and below where the title deed vests with the plot holders irrespective of the nature of use to which they are put to use in relaxation of all rules and regulations on payment of compounding fee as may be fixed by corporation and also to regularise the unauthorised constructions of more than 100 sq.meters and upto 200 sq.meters where the title deed vests with the plot holders irrespective of the nature of the use of which they are put to use in relaxation of all rules and regulations on collection of compounding fee as shall be fixed by the Municipal Corporation of Hyderabad by collecting a penal amount at the reduced rate of Rs.100/- per sq.meter if constructed in violation of Zoning Regulations or Bye-laws and the regularisation of unauthorised constructions on the plots of the size of more than 200 sq.meters shall be made in accordance with the rules and regulations in force; made upto 31st December, 1991 in the Municipal Corporation of Hyderabad and such constructions do not affect any public interest or interfere with any public activity; And whereas the Government in G.O.Rt.No.1235, MA & UD Department, dated the 14th August, 1992 have extended the said scheme formulated in G.O.Ms.No.87, MA & UD., dated 12th February, 1992 to all the Urban Development Authorities in the State and other Municipal Corporations, Municipalities and Gram Panchayats falling within the development areas of the Urban Development Authorities by empowering the respective authorities to exercise such powers as the Municipal Corporation of Hyderabad is exercising in G.O.Ms.No.87, MA & UD., dated the 12th February, 1992 and the said orders have been extended from time to time; And whereas, in G.O.Rt.No.712, MA, dated the 17th June, 1995, the Government have issued orders extending the scheme formulated in G.O.Ms.No.87, MA, dated the 12th February, 1992 in respect of Municipal Corporation of Guntur, Kurnool, Warangal and Rajahmundry; And whereas in G.O.Ms.No.289, MA, dated the 25th May, 1998, Government have issued orders extending the time limit for a further period of three months upto 31st July, 1998; And whereas, in G.O.Ms.No.243, MA & UD dated the 22nd May, 1996, in partial modifications of the scheme formulated in G.O.Ms.No.87, MA., dated the 12th February, 1992, prescribed the ranges of penal amounts by classifying the areas and extent of the plot area thereby authorizing the respective Municipal Commissioners to regularise all unauthorised constructions by collecting the penal amounts prescribed therein; And whereas, in G.O.Ms.No.382, MA., dated the 27th July, 1996, Government have issued orders amending the ranges of penal amounts specified in G.O.Ms.No.243, MA, dated the 22nd May, 1996 thereby enabling the respective authorities to levy penal amounts on the building with commercial character having number of floors; And whereas in G.O.Ms.No.343, MA, dated the 2nd December, 1997, Government have prescribed different rates for regularizing constructions with Madras terrace, Mangalore tiles, A.C.Sheets and huts which shall be applicable for all Corporations, Municipalities and Urban Development Authorities except for Municipal Corporation of Hyderabad and Kakatiya Urban Development Authority; And whereas in G.O.Ms.No.373, MA., dated the 1st July, 1998, Government have issued orders to give a one time opportunity by giving several concessions thereby facilitating the owners or individuals to come forward and declare voluntarily the unauthorised constructions made upto 30th June, 1998 and to regularise the unauthorised constructions by paying the penal amount as prescribed therein; And whereas, in G.O.Ms.No.419, MA., dated the 30th July, 1998, Government in supersession of all the earlier orders for regularizing the unauthorised constructions made from 1st January, 1985 to 30th June, 1998 by exempting the old buildings from the purview of the regularisatin policy have issued orders framing a comprehensive building regularisation scheme; And whereas, it was ordered in the said scheme that the regularisation of unauthorised constructions or buildings shall not be considered in the following cases and in cases where public interest and safety are likely to be affected, namely:- (a) The land belongs to Government or Municipal or Local Body; (b) Surplus land declared either under the Urban Land (Ceiling and Regulation) Act, 1976 or under the Andhra Pradesh Land Reforms (Ceiling on Agricultural Holdings) Act, 1973; (c) Sites affected under the alignment of Master Plan or Zonal Development Plan Roads and other Public Roads; (d) Tank bed and Shikam Lands; (e) Layout open spaces meant for public use; (f) Parking spaces; (g) Areas earmarked for recreational use in Master Plan or Zonal Development Plans; (h) In case of Multistoried buildings unless no objection certificate is produced in respect of fire safety and height of the building from the fire services authority and Airport Authority respectively and structural stability by the competent authority concerned; (i) Where the cases are pending before the court of law; And whereas, the High Court of Andhra Pradesh in W.P.No.25011 of 1998, dated the 25th January, 2002 has quashed the impugned G.O.Ms.No.419, MA, dated the 30th July, 1998 on the ground that the said Government Order has been issued without any authority of law and there is no rule or any provision in the relevant Acts which give power to Government to regularise the unauthorised constructions, and it is ultra vires to the provisions of the Hyderabad Municipal Corporation Act, 1955 and the rules made thereunder; And whereas, on quashing of the aforesaid orders of the Government consequential action for the demolition of the unauthorised construction shall have to be taken up by the Government; And whereas such demolition of thousands of buildings shall result in wasteful expenditure causing hardship to general public and such demolition may invite litigation from the public and involves huge expenditure from the State exchequer; And whereas the Government have regularised several unauthorised constructions as per the Government orders issued from time to time and several persons paid huge amounts in response to the orders issued by the Government in G.O.Ms.No.419, MA, dated the 30th July, 1998; And whereas to avoid such hardship, huge financial expenditure and litigation, the Government have decided to enact a law to empower the Government to regularise the unauthorised constructions made in the said Urban areas and to validate the actions of the authorities in regularizing the unauthorised constructions in pursuance of the orders issued by the Government from time to time;” Sections 1, 2 and 3 of the 2003 Act also read as under: “1. Short title and commencement:-(1) This Act may be called the Andhra Pradesh Regularisation of the Unauthorised Constructions in Municipal Corporations, Municipalities and Urban Development Authorities Act, 2003. (2) It shall be deemed to have come into force on the 12th February, 1992. 2. Regularisation of unauthorised constructions:- Notwithstanding anything contained in the Hyderabad Municipal Corporations Act, 1955, the Andhra Pradesh Municipalities Act, 1965 and the Andhra Pradesh Urban Areas (Development) Act, 1975, the Government shall have the power to regularise the unauthorised constructions made by the owners or individuals who constructed the buildings unauthorisedly or in deviation of the sanctioned plan upto 30th June, 1998 filed voluntary declaration or application for regularisation as stipulated under various Government Orders and to regularise the same after levying the penal amount in accordance with the procedure prescribed or the orders issued in this regard. 3. Validation:-Notwithstanding anything contained in the Hyderabad Municipal Corporation Act, 1955, the Andhra Pradesh Municipalities Act, 1965 and the Andhra Pradesh Urban Areas (Development) Act, 1975 and in any judgment, decree or order of any Court, Tribunal or other authority contrary to the various Government Orders including orders issued in G.O.Ms.No.419, MA, dated the 30th July, 1998 authorising the competent authorities to regularise the unauthorised constructions and the constructions made in deviation to the sanctioned plan in respect of the voluntary declarations or applications filed as stipulated in various Government Orders shall be regularised after levying the penal amount and collection thereof as specified in accordance with the procedure prescribed or the orders issued for regularisation of deviated or unauthorised constructions of buildings, shall be deemed always to have been, validly issued and accordingly:- (a) all acts, proceedings, things done, taken or being taken by the State Government or by any Officer of the State Government or by any other authority in connection with the regularisation of unauthorised constructions and levy and collection of penal amounts thereon under the Government Orders shall be deemed to have always been, done or taken in accordance with law; (b) no suit or other proceedings shall be instituted, maintained or continued in any Court, Tribunal or before any authority for the refund of any such penal amount; and (c) no court shall enforce any decree or order directing the refund of any such penal amount.” viii) It is also borne out from the record that one Sri M.V.Srinivas, son of late M.Krishna Murthy filed Writ Petition No.22953 of 2005 with the complaint that the authorities of the Corporation have failed to take action against the illegal construction made on the eastern side of Manasa Apartments bearing Municipal No.1-11-110/17, Tatachari Colony, Shayamlal Buildings, Begumpet, Hyderabad and adjacent to house bearing No.1-11-110/98/2, Street No.6, Lane No.6 situated at Shaymlal Buildings, Begumpet, Hyderabad. The learned Single Judge dismissed the writ petition by observing that the petitioner has not given details of the ownership of the vacant site adjacent to Manasa Apartments and has not impleaded the persons raising illegal constructions as parties. ix) Feeling aggrieved by the order of the learned Single Judge, Sri M.V.Srinivas filed an appeal under Clause 15 of the Letters Patent, which was registered as Writ Appeal No.2130 of 2005. While issuing notice of the appeal on 8-11-2005, the Division Bench accepted the appellant’s prayer for impleadment of the persons raising illegal constructions as respondent Nos.4 and 5. Simultaneously, a direction was issued to the Commissioner of the Corporation to ensure that no further construction is made by the newly added respondents despite the order of injunction passed by I Junior Civil Judge, City Civil Court, Secunderabad in O.S.No.1428 of 2005. On 21-12-2005, the Division Bench passed a detailed order, the relevant portions of which are extracted below: “We have heard learned counsel for the parties and perused the record. Ordinarily, this Court is loath to entertain a writ petition in a matter, which is substantially subjudice before a Civil Court. But keeping in view the enormity and magnitude of the problem created due to large scale illegal/unauthorized constructions in the city of Hyderabad and elsewhere and grant of temporary injunction by the Civil Courts entitling the violators of the law to continue with illegal constructions, we have thought it proper to entertain this petition in larger public interest. The appellant’s grievance is that even though respondent Nos.4 and 5 have raised construction in violation of the sanctioned building plan, belated action taken by the authorities of the Municipal Corporation for demolition of unauthorized structure has been gravely impeded on account of injunction order, dated 26-10-2005, passed by I Junior Civil Judge, City Civil Court, Secunderabad, in I.A.No.1341 of 2005 in O.S.No.1428 of 2005. We have perused the interim order dated 26-10-2005 passed by the learned I Junior Civil Judge and are prima facie of the view that the Court should not have passed an unrestricted injunction entitling respondents 4 and 5 to continue with the illegal constructions. Unfortunately for the said respondents and fortunately for the public at large, the Division Bench had directed Commissioner, Municipal Corporation to ensure that respondents No.4 and 5 are not allowed to raise further construction. We are informed by the learned counsel for the appellant and counsel representing Municipal Corporation, Hyderabad, that a very large number of similar cases are pending in the Civil Courts at Hyderabad and Secunderabad. Learned counsel representing Municipal Corporation is directed to supply a list of such cases to this Court by 26-12-2005. A list of such cases should also be furnished to Chief Judge, City Civil Court, Hyderabad within seven (7) days from today. A list of the cases in which application(s) may have been filed by the Municipal Corporation or any of its functionary for vacating the ad interim injunction must also be supplied to the Chief Judge, City Civil Court, Hyderabad. On receipt of such lists, the Chief Judge should transfer all the cases to two Courts having jurisdiction over the matter. The Presiding Officers of those Courts must within next 60 days dispose of all pending applications in which ex parte injunction may have been passed against the action taken by the Municipal Corporation and its functionaries for demolition of illegal constructions as also the applications filed by the Municipal Corporation and its functionaries for vacating interim injunctions. While disposing of the applications for injunction, the learned judicial officers shall examine each case on merits and pass appropriate order without being influenced by the fact that the matter is being monitored by this Court. However, in no case, order of injunction ex parte or otherwise should be passed entitling the plaintiff to continue with the illegal construction. The Chief Judge, City Civil Court, Hyderabad, is directed to submit a report to this Court within six (6) weeks of the action taken by him and officers subordinate to him in furtherance of this order. In order to stop the menace of illegal constructions in the city of Hyderabad which causes incalculable injury to the public at large, we deem it proper to direct the authorities of Municipal Corporation of Hyderabad, the State Government and all other competent authorities not to regularize any illegal construction whether by administrative action or otherwise. The petition be listed for further consideration on 02-02-2006.” x) By taking cue from order dated 28-2-1996 passed in Contempt Case No.101 of 1996, order dated 8-3-1996 passed in Writ Petition No.4795 of 1996 and judgment dated 21-12-2005 in Writ Appeal No.2130 of 2005, the Commissioner issued notices dated 16-3-2006 under Section 636 of the 1955 Act requiring the petitioners to remove the unauthorised structures constructed in stilt/cellar/sub-cellar within three days. Paragraphs 3 to 6 of the notice read as under: “The Hon’ble High Court in the order in suo motu contempt case in the reference 1st cited has ordered that steps be taken immediately for creation of parking areas with a view to reduce traffic congestion being created on account of cars being parked on roads for want of parking within the premises. Similarly, the Hon’ble High Court in Writ Petition in the reference 2nd cited has directed the MCH to inform the steps the MCH has undertaken to enforce the regulations. Further, the Hon’ble High Court directed the Municipal Corporation of Hyderabad in W.A.No.2130/2005 to remove the illegal constructions made in the cellars and sub-cellars shall continue unabated. In the first instance, a notice be given to the owner of the building to voluntarily remove the illegal construction and put the cellar and sub-cellar to the same use for which they were constructed. If the owners fail to take remedial measures, then the competent authority shall ensure that illegal constructions are removed by using all legally permissive measures, including force. As per the reference 3rd cited,