THE HONOURABLE SRI JUSTICE A.GOPAL REDDY W.P.No.22308 of 1994 Dt.23-6-2006 1. Ramgopal Bajaj and others ..Petitioners Vs. 1. Municipal Administration, Government of Andhra Pradesh, represented by its Secretary,Secretariat Building, Hyderabad, and others. ..Respondents. THE HONOURABLE SRI JUSTICE A.GOPAL REDDY W.P.No.22308 of 1994 ORDER This is an application under Article 226 of the Constitution of India for issuing a Writ of Certiorari to quash the permit No.475/94 in file No.35/TP6/94 issued by the respondents 1 to 3 in favour of the sixth respondent permitting respondents 4 to 6 to construct a multi- storied building complex in premises No.4-1-1225, King Kothi Road. Necessary facts which are relevant for disposal of the writ petition are briefly stated thus: Late A.B.H.Khursheed who is the owner and possessor of the premises bearing No.4-1-1225 had constructed two separate buildings, one on the south and another on the north facing the main CC road leaving a passage of about 10 feet in- between the two buildings. The second petitioner purchased the southern side of the building, namely, D.No.4-1-1225/2 in the year 1975 and since then she has been in possession of the said property. Late Khursheed executed a will in favour of his unmarried sister Ms. Khursheed Banu and as per the will, she must enjoy the property during her life time and after her death it must revert back to the management of the sixth respondent-Trust. Miss. Banu in the year 1979 sold away the northern wing of the said building bearing Municipal No. 4-1-1225/1 King Kothi Road, Hyderabad to the first petitioner and since then he has been in possession and enjoyment of the said property. The Management of the sixth respondent-Trust applied to the Municipal Corporation of Hyderabad (MCH) for permission to construct a multi-storied building over the premises bearing M.No.4-1-1225. On coming to know of the same, the petitioners lodged a complaint before the 2nd and 3rd respondents to stop the illegal construction, but as is of no avail, the petitioners filed the present writ petition contending that granting permission by the respondents 1 to 3 in favour of the sixth respondent enabling them to construct a multi-storied building is in violation of the Municipal Corporation building Bye-laws (for short “the Byelaws) and Multi- storied Building Regualtions, 1981 (for short” the Regulations”). No permission to construct a multi-storied building can be granted if the area is less than 2000 sq.metres, whereas the area where permission is granted is only about 1725 sq.yards i.e., about 1442.56 sq.metres i.e., far below the required extent. The site where permission is granted is surrounded by buildings on all the sides except an opening towards the western side through a passage of 10 feet width which abuts the petitioners’ buildings all along. The proposed construction is in gross violation of the Multi-storied Building Regulations, 1981, because, multi-storied building activity cannot be carried on a road where the width of which is less than 40 feet wide. Construction if allowed to proceed would cause immense damage to the adjacent property and 10 feet passage will not be sufficient to cater the needs of the vehicle owners who visit the multi-storied complex and petitioners who are adjacent owners. Further, premises bearing M.No.4-1-1225 falls within Zone Nos.6 and 7 which is a prohibited zone for construction of multi- storied building as per the Master Plan. Petitioners 3 to 5 who have been brought on record as LRs of the first petitioner are enjoying the easementary rights to let out drain which passes through the open space of 10 feet. The writ petition was got amended by raising following additional grounds as per the orders passed in WPMP No.1646 of1995 dt.30-1-1995, namely, respondents 5 and 6 had failed to obtain a clearance certificate from the Director of Fire Services as the ground coverage of the building is more than 500 sq. metres, which is in violation of Bye-law No.21; entrance and exit is less than 9 metres, whereas the minimum radium required is 15 metres; Regulation Nos.7, 7.2.1, 7.2.2 and 8 of Bhagyanagar Urban Development Authority Zoning Regulations had been violated; Municipal Corporation of Hyderabad has no jurisdiction or authority to grant permission to construct a multi-storied complex which is more than 1 + 1 floor on enacting A.P. Urban (Development) Act, 1975 (for short “the Development Act”) and if the said construction is allowed to be proceeded with, the rights of the petitioners who are neighbours have been impaired, therefore the same cannot be allowed. In opposition to the writ petition, the Additional Chief City Planner, Municipal Corporation of Hyderabad, Hyderabad filed a counter-affidavit on behalf of the respondents 2 and 3 stating that the building in question is not a multi-storied building and the Regulations have no application. The width of the passage as 10 feet as stated by the petitioners is not correct and it is 12 feet wide and there is no requirement of 15 feet width, which is a part and parcel of the plot and not a passage. If the petitioners’ rights have been violated, the same cannot be agitated under Article 226 but same can be agitated only before the civil court. The second petitioner who constructed a building unauthorizedly in the area purchased suffered a decree from the civil court as per the counter allegations of the sixth respondent; therefore, the petitioners have not approached the court with clean hands. The writ petition is squarely motivated and it has been filed to thwart the construction of the building as per the sanctioned plan by the sixth respondent. The sixth respondent applied for permission for Group Housing as per G.O.Ms.No.310 Municipal Administration dt.11-5-1993 and the said permission was granted as per the Building Bye-laws and Zoning Regulations of 1981 as amended by the Government from time to time. The site is abutting 60 feet wide road as per the Zonal Development Plan and the permission was granted for construction of residential flats on stilt for parking plus 4 upper floors, which is as per the scheme. As the building is not hazardous, Bye-law No.32 (b) has no application. The Master Plan and Zonal Development Plan has been prepared by Hyderabad Urban Development Authority (HUDA) for the orderly development within the HUDA limits. The task of implementation of development plans is entrusted to the MCH and no special permission as such is required by MCH from HUDA. Moreover, as per G.O.Ms.No.310, HUDA is represented in the Committee for issuing permission in favour of the sixth respondent. The construction permission granted in favour of the sixth respondent is strictly in accordance with the Bye-laws and the permission which was granted do not fall within the meaning of multi-storied building and as it is not a multi-storied building, no objection certificate from the Fire Service is necessary. Respondents 4 and 5 filed a counter-affidavit admitting the fact of the sixth respondent making the application for construction of a stilt plus 4 upper floors for residential flats and entering into an agreement of sale to purchase the property by R-5, who empowered under the power of attorney to take necessary steps for approval of the plans etc., submitted by the sixth respondent to the Municipal Corporation of Hyderabad. They denied about the averments made in the petitioners’ affidavit that R-2 expressed dissent in granting permission and the approval of plans on the pressure exhorted. The plans which were originally submitted in April, 1994 were finally approved subject to various conditions on 5-9-1994. Since approved plans are not for the construction of multi-storied building within the meaning of the Regulations, approval accorded is in accordance with the Rules and Regulations which were in force. The proposed building is not on to the main road and is in fact 70 feet away from the main road and passage is about 13 feet in width and the main road is about 36 feet and as per the Master Plan it is being considered as 60 feet road. Since old sewerage connections have become defunct new sewerage line is in existence in front of the petitioners’ house. The sixth respondent filed a separate counter-affidavit stating that the second petitioner purchased one of the buildings under a sale deed dt.21-10-1975, whereas the first petitioner purchased the another on 31-5-1997. The vendor retained exclusive rights in the said passage. The width of the said passage was shown as 12’-6” in the plan annexed to the title deed of petitioner No.1. In actual it is 12’-4” at the entrance and 13’-7” at the end towards the building, the average width is being 13 feet all along. Petitioner No.2 constructed a balcony projecting to the passage leading to the main building. His predecessor in title filed OS No.652/81 on the file of XI Assistant Judge, City Civil Court, Hyderabad for mandatory injunction directing petitioner No.2 to remove the encroachment and for restraining her from infringing the plaintiffs’ rights in respect of the passage and the said suit was decreed on 26-10-1988. Against which petitioners preferred AS No.111/89 on the file of Chief Judge, City Civil Court, Hyderabad, which is pending. When the petitioners approached the sixth respondent for settlement, which was not acceptable to the sixth respondent, the present writ petition came to be filed. It is further stated that in accordance with the Master Plan, the existing 36 feet wide road is widened to 60 feet by surrendering 12 feet by the owners on either side and accordingly the sixth respondent surrendered 12 feet of the passage, so as to facilitate compliance with the Master Plan, but the petitioners are resisting the same. The sixth respondent applied for permission to construct residential flats on stilt for parking + four upper floors to the second respondent on 31-1-1994. The proposed construction does not come within the definition of multi-storied building as amended from time to time. The alleged violations if any are only in case of a multi-storied building and not to the structures proposed by the sixth respondent as sanctioned by the authorities. After obtaining sanction, the officials of the Municipal Corporation of Hyderabad are frequently inspecting the progress of the construction and satisfied that there is no violation in proceeding with the construction and accordingly prayed for dismissal of the writ petition. Sri Challa Sitaramaiah, learned senior counsel appearing for the petitioners urged the following points: 1. The building for which permission is granted is Multistoried Building and the permission is in clear violation of the Bye-Laws and the Regulations. 2. The Municipal Corporation of Hyderabad (MCH) has no authority or power to grant permission. It is the A.P. Urban Area Development Authority which could exercise the power as the delegation is not valid. 3. The building is located in the prohibited area for construction of Multistoried Buildings. The point No.1 was amplified in this manner. The stilt and four floors which were permitted under the permission come within the meaning of word ‘Multistoried Building’ as per Regulation 2(v) of the Regulations. Since the Byelaws apply to the entire area as per Byelaw 1.2, Regulations are in addition to Byelaws as per Regulation 3(a) (b) of the Regulations. The word ‘floor’ has been defined in Municipal Byelaws. As per the note appended to the definition ‘floor’, the sequential number of floor shall be determined by its relation to the determining entrance level. As per the said note floor is at or wholly above ground level the lowest floor in the building with direct entrance from the road/street be termed as floor 1. The other floors above floor 1 shall be numbered in sequence as floor 2 floor 3 etc. with number increasing upwards. Since the stilt had direct entrance from the road/street which has to be treated as ground floor under the Regulations. Since “ground floor” has not been defined under the Regulations the dictionary meaning has to be taken for determining what the “ground floor” is. If the same is taken into consideration the building for which permission is sanctioned is a Multistoried Building and have to be satisfied the conditions enumerated in the Regulations which prohibit Multistoried Buildings in certain restricted zones. As the permission granted is in the restricted zone and the same is not in conformity with the Regulations, the same has to be set aside. Per contra, Sri Ganta Rama Rao, learned standing counsel for the Municipal Corporation would submit that since the height of the building is less than 15 meters Corporation has not insisted permission from the Fire Service Authority. The building permission which was granted is in accordance with the MCH Byelaws. Sri C.Kodandaram, learned counsel for respondents 4 to 6 did not put challenge to the submission made by learned senior counsel for petitioners but, however, would contend that the building permission which is granted is within the definition of “Multistoried Building” as defined under Regulation 2(v). Since the height of the building is less than 15 meters the stilt cannot be treated as ground floor and permission which is obtained is stilt + four floors. Hence, MCH is competent to accord permission which is accordingly granted. It is rather distressing to note when learned senior counsel, who appeared on behalf of the petitioners, and who presented his argument with admirable objectivity and clarity, acknowledged as he had to, none of the counsel appearing for the respondents were present. In the process this Court is deprived of the required assistance from them on the points so argued by the senior counsel. It is needless to say an advocate who accepted the brief is under obligation not only to defend their client’s case and is duty bound to clarify the controversy raised. Before answering point No.1 it is advantageous to notice the word “Multistoried Building” as defined under Regulation 2(v) of the Regulations which reads thus: ‘Multistoried building’ means and includes all buildings with more than four floors (including the ground floor) or whose height is 15 meters or more, measured from the average level of the Central line of the street on which the site abuts, provided that staircase rooms lift rooms, chimneys and elevated tanks above the top most floor and architectural features shall not be included in the number of floor in calculating the height of the building. The total height of such additional construction shall not exceed the average floor height of the building”. ‘Floor’ as defined under Bye-law 1.2 of the Byelaws reads as under: “Floor: means the lower surface of a storey on which one normally walks in a building. The general term ‘floor’ unless otherwise specifically mentioned shall not refer to a ‘mezzaine floor; Note: The sequential number of floor shall be determined by its relation to the determining entrance level. For floors at or wholly above ground level the lowest floor in the building with direct entrance from the road/street shall be termed as floor1. The other floors above floor1 shall be numbered in sequence as floor 2 floor 3 etc. with number increasing upwards.” The word “ground floor” used in the definition of Multistoried Building has not been defined under the Regulations. This Court has to fall back upon the dictionary meaning of ‘ground floor’. The Random House Dictionary of the English language 9th Edition defines ground floor as “the floor of a building nearest to ground level”. The words and phrases Permanent Edition, Volume 18A, Gone—Gyrotiller defines the word ground floor as “the basement should be regarded as the ground floor” (Isaacs v. Dawson 75 N.Y.S. 337). In FOOT v. HODGSON (Vol.XXV Q.B. P.160) the judge of the City of London Court rejected the award of surveyors made under Section 85 of the Metropolitan Building Act, 1855, when the defendant proposed to rebuild the premises which were burnt down on the ground that the topmost floors were “stories” within the meaning of first schedule to the Metropolitan Building Act, 1855 and if they were “stories” thickness of the party wall between the plaintiff’s and defendant’s premises was insufficient and did not comply with the requirements of the schedule and accordingly when the defendant decided to pulled down parted wall and rebuild it of an increased thickness and gave notice to the plaintiff, he objected to the proposed rebuilding of the party wall on the ground that it will be injuries to his trade and also unnecessary; and that the two floors bounded by the sloping roof were not “stories” within the meaning of the schedule and if these were excluded from the calculation, the party wall as it stood was of sufficient thickness for the building which the defendant proposed to erect. To resolve the differences the parties appointed two surveyors who made an award, by which they found that the party wall was not of sufficient strength for the intended building. Against which the plaintiff appealed to the Judge of the City of London Court who set aside the award of the surveyors. On the defendant’s appeal Queen’s Bench while setting aside the judgment of the judge of the City of London Court restored the award and held that the country court was wrong in holding as a matter of law that a story must necessarily be inclosed within four vertical walls and as a consequence rooms built in the roof could not be considered as forming a story. Having regard to the meaning of ‘ground floor’ referred to above ‘stilt’ has not been defined under the Multistoried Building Regulations. ‘Stilt’ can be treated as ground floor for the purpose of defining Multi Storied Building. Having regard to the conclusion that the Multistoried Building, referred to above, refers the ground floor, the contention of the learned senior counsel that the ground floor has to be treated as a floor for defining the Multistoried Building is well founded, and the submission made by the counsel for respondents 4 to 6 since it is a stilt floor it cannot be treated as a ground floor cannot be accepted. In the case on hand, petitioners in their affidavit asserted that Multistoried Building cannot be constructed in a demarcated and restricted zone. The premises where construction permission was granted is in prohibited zone for construction of Multistoried Building and the permission is in gross violation of Regulations. The said fact has been accepted by HUDA in its counter that Zones 6 and 7 come within the prohibited area for construction of Multistoried Building and further stated that permission accorded is not for Multistoried Building. Hence, the prohibition referred to above will not apply to the permission sanctioned by respondent No.2. The further submission made by the learned counsel for respondents 4 to 6 that height of the building is not more than 15 meters, therefore, it cannot be treated as Multistoried Building and authorities cannot insist the approval of the Fire Services Authority etc. for granting permission is a fallacy. Once it is admitted that the permission granted is ground + four upper floors, it satisfies the definition of Multistoried Building and since the permission granted by the Municipal Corporation is not in accordance with Regulations, and unless the zonal regulations have been relaxed no permission can be granted for construction of Multistoried Building in favour of respondent No.6. In view of the same, grant of permission by the Municipal Corporation is illegal and it is accordingly declared that the same is not in tune with the Regulations. Learned senior counsel elaborated point No.2 as under: It is not disputed that MCH granted permission, which has no authority to sanction, and the Authority has not delegated power under Section 56 of the Development Act to the Municipal Corporation for granting permission. Any delegation must be in conformity with the Acts and Rules. While enacting the Act Chapter XIII of the Hyderabad Municipal Corporations Act, 1955 was repealed. On such repeal it is only the Urban Area Development Authority shall have the power of granting permission. Unless such power is delegated through a notification to such officer or local authority the same must be exercised by the Authority only. The word ‘Authority’ has been defined under Section 2(b) r/w 3(3) which consists of 15 members including the Chairman and the Vice Chairman. The Vice Chairman is not competent to delegate power on behalf of Authority unless the Authority itself resolves to delegate the power under Section 56(2) of the Act and the delegation is notified and published as per Rules 6 and 7 of A.P. Urban Development Authority (Hyderabad) Rules, 1977. In the absence of any proper delegation the power exercised by the MCH as delegatee for granting permission is without any authority. The power of delegation is meant to discipline the procedure prescribed under the statute for taking a decision to delegate the power and it must be strictly followed otherwise it becomes autocratic. To buttress his submission reliance is placed on the following judgments: 1. BABU VERGHESE v. BAR COUNCIL OF KERALA[1] 2. DEEP CHAND v. STATE OF RAJASTHAN[2] 3. IN RE SUBRAHMANYAM[3] 4. MAHENDRA LAL v. STATE OF U.P.[4] 5. SMT. M.RAGAMMA v. STATE OF A.P.[5] 6. M.L.BUILDERS PVT. LTD. V. RADHEY SHYAM SAHU[6] 7. V.M.KURIAN v. STATE OF KERALA[7] Learned standing counsel for the Municipal Corporation would contend that on coming into force of the Development Act granting of lay out alone is vested with HUDA but not building permission. Once the task of implementation of development plans is entrusted with the MCH, no permission is required to be taken by MCH from HUDA. As per G.O.Ms.No.310 HUDA is represented in the Committee for issuing permission which can be impliedly approved by the HUDA. Sri T.Niranjan Reddy, learned standing counsel for HUDA would contend that grant of building permission within the Corporation limits vests with the Municipality. Even if there is no delegation by HUDA previously, once the permission is granted in accordance with the MCH Byelaws, the same has now been delegated to the MCH with retrospective effect as per the Notification which was published under the Andhra Pradesh Gazette Part-II Extraordinary dated 07-03-2006 during the course of hearing of writ petition. As the permission accorded is not for Multistoried Building, the prohibition under Regulation 2(v) would not be attracted to the permission granted. Learned counsel for respondents 4 & 5 while supplementing the same would contend that power to grant building permission vests with the MCH. Sri C.Ramakrishna, learned counsel for respondent No.6 adopted the same. Sri N.Subba Rao, learned counsel for the implead parties— respondents 8 to 31, who purchased the flats, supported the argument of counsel for respondents 4 to 6. Section 2(3) and (28) defines the words ‘building’ and ‘land’. Chapter XII of the HMC Act deals with Building Regulations and the procedure to be followed for erection of building and for grant of building permission. The HMC Act applies for grant of building permission whereas for development of the land Development Act will apply. What is repealed from by Development Act is Chapter XIII but not Chapter XII of the HMC Act. Chapter III of the Development Act deals with Master Plan and Zonal Development Plans. Section 6(2) deals with Master Plan for the development of area whereas Section 7 (2) deals with Zonal Development Plan. Section 8 prescribes the procedure to be followed in preparation and approval of plans. Chapter IV deals with development of lands and Section 14 of the Act shall be read in conjunction with Section 13 which deals with declaration of development areas and development of land in the said areas. Once Section 14(3) specifically refers to clause (d) of sub-section (2) of Section 7, which requires application for permission to the cases covered by clause (d) of sub-section (2) but not other cases. In order to appreciate the submission made on point No.2 it may be necessary to give an extract of Statement of Objects and Reasons of the Development Act. “ The population of the cities of Hyderabad and Secunderabad, has been growing rapidly since the formation of the Andhra Pradesh State with effect