HON'BLE SRI JUSTICE C.V. NAGARJUNA REDDY W.P.No.16938 of 2008 Date : 14-7-2011 Between : Akhilesh Sood s/o.late Darshanlal Sood .. Petitioner And The Commissioner, Greater Hyderabad Municipal Corporation, Hyderabad and others .. Respondents Counsel for petitioner : Sri C.Malla Reddy, Senior Counsel Counsel for respondent Nos.1 to 4 : Sri C.Damodar Reddy Counsel for respondent No.5 : Sri V.Ravi Kiran Rao The Court made the following: ORDER: At the Interlocutory stage, the Writ Petition is taken up for hearing and disposal with the consent of the learned counsel for the parties. This Writ Petition is filed for a certiorari to quash notice d a te d 26-7-2008 issued under Section 636 of the Hyderabad Municipal Corporation Act, 1955 (for short “the Act”) in respect of property bearing H.No.11-6-111, situated at Cherukuthota, Saroornagar Village and Mandal, Ranga Reddy District. The petitioner has obtained building permission vide permit No.G3/BP/520/2005, dated 6-8-2005 from the official respondents for construction of stilt plus upper five floors. Respondent No.1 issued notice dated 13-6-2008 to the petitioner wherein it is alleged that he has unlawfully commenced construction of 6th floor without seeking permission as required under Section 428 of the Act. By the said notice, the petitioner was called upon to stop the ongoing construction of the 6th floor and produce sanctioned plan, if any for verification along with a copy of the attested registered document, within 24 hours. Thereafter, respondent No.2 has issued notice dated 26-7- 2008 under Section 636 of the Act calling upon the petitioner to remove the unauthorisedly raised 6th floor within 24 hours from the date of receipt of the notice, failing which the same will be demolished. This notice is questioned in this Writ Petition. Respondent No.5, which is the residents’ association of the building constructed by the petitioner, got itself impleaded. It is the pleaded case of the petitioner that as he has constructed the building with deviations and also raised the 6th floor without sanction, he has made application on 24-4- 2008 for regularization of the unauthorized construction under Building Penalization Scheme, 2008 (for short “the BPS”). In the counter affidavit filed by respondent No.2, it is inter alia stated that the petitioner has made construction deviating from the sanctioned plan without leaving the permitted all round open spaces, that the bona fide purchasers have applied for regularization of the said deviations under the BPS, that recently the petitioner, taking advantage of the BPS has constructed the 6th floor unauthorisedly without prior permission and therefore the impugned action is initiated for removal of the unauthorized construction. This court by order dated 5-8-2008, directed the officials of the Greater Hyderabad Municipal Corporation (for short “ the Corporation”) to depute one of the responsible officers to visit the premises in question, note the existing structures and submit a report by 25-8-2008. Accordingly, a purported repot, styled as ‘Note’, was submitted on 23-8- 2008. It is stated in the said note that the inspection of the premises revealed that slab was laid on the 6th floor, plastering work was also completed and the entire balance work was held up. Certain photographs have also been filed along with the said note, a perusal of which shows that the skeletal structure of the 6th floor appears to have been completed. At the hearing, Sri C.Malla Reddy, learned Senior Counsel appearing for the petitioner submitted that since his client has filed the application under the BPS on 24-4-2008, the attempt of the respondents to demolish the disputed structure is illegal. Sri V.Ravi Kiran Rao, learned counsel for the impleaded respondent, which is the residents’ welfare association relating to the building in question, stated that the petitioner has commenced raising of the 6th floor only after filing the application for regularization under the BPS and that in the guise of pendency of the said application, the petitioner seeks to regularize the illegal construction. The learned counsel representing the learned Standing Counsel submitted that as the petitioner has commenced construction of the 6th floor only after the Corporation has received the application for regularization, it has issued the impugned notice. From the photographs, it is evident that the petitioner has raised structure on the 6th floor. While the existence of the structure is not in dispute, the question is as to what is the point of time at which the said construction was commenced. In my opinion, the burden lies on the petitioner to show that by the time the application for regularization under the BPS was filed, the construction of the 6th floor was not only commenced, but completed. No such evidence is adduced by the petitioner in this Writ Petition. In the opinion of this court, it is the statutory duty of the Corporation to ensure that the buildings are constructed strictly in accordance with the sanctioned plans and no person can be permitted to take liberties with the existing laws by trying to take advantage of the loopholes in the system created on account of the schemes such as the BPS. It hardly needs to be emphasized that illegal and unauthorized constructions, raised in deviation of the sanctioned plans or without sanctioned plans, are deleterious to the public safety and health and such activity needs to be put down with iron hand. Unfortunately, the civic authorities are not living upto the expectations of the society. Wherever some action is sought to be taken, the unscrupulous elements are trying to take advantage of the loopholes created by the executive apparatus, frustrating what the little efforts that are being made to curb this menace. Having regard to the facts of this case, I am of the opinion that it would be appropriate if respondent No.1 examines the application filed by the petitioner/any other residents of the building in question and after giving an opportunity of personal hearing to the petitioner and respondent No.5, which is the residents’ welfare association and which is stated to have filed objections, decides as to whether the petitioner has raised the construction before filing of application for regularization of the unauthorized construction under the BPS or not. He shall also examine as to the point of time at which the structures were raised by the petitioner on the 6th floor, falls within the time permitted by the BPS. The parties are permitted to adduce relevant documentary evidence for this purpose. If respondent No.1 is satisfied that the structures raised by the petitioner qualify for regularization, he shall pass an order for regularization. Conversely, if it is found that the said structures cannot be regularized under the BPS, he shall pass an appropriate order and take suitable action for removal of such unauthorized structures after following the procedure prescribed by law. Respondent No.1 shall complete this exercise within a period of two months from the date of receipt of this order. Subject to the above directions, the Writ Petition is disposed of. As a sequel, interim order dated 24-11-2008 is vacated and WPMP Nos.21989/2008 and 17248/2010 are disposed of as infructuous. ________________________ Justice C.V. Nagarjuna Reddy Date: 14-7-2011 AM