IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) THURSDAY, THE TWENTY SEVENTH DAY OF MARCH TWO THOUSAND AND EIGHT PRESENT THE HON'BLE MR JUSTICE V.ESWARAIAH WRIT PETITION No.10772 of 2005 Between: Mohd. Naseer Baloor, S/o. Mashallah Ali, R/o. Plot No. 303, Suhag palace, Rd.No. 12, Banjara Hills, Hyderabad. ..... PETITIONER AND 1 M/s. Krishna Engineer works Shop, Rep,. by its Partners, E.J. Satya Murthy S/o. E.G. Krishna Murthy Both R/o. 2-2-3/6/B, Opp. CTI, New Nallakunta, Hyderabad. 2 E. Chaitanya Murhty S/o. E.G. Krishna Murthy, Both R/o. 2-2-3/6/B, Opp. CTI, New Nallakunta, Hyderabad. 3 M/s. Sai Kruthi Construction,Rep. by its Managing Partner, Y. Raghava Rao, S/o. Y. Nageshwar Rao, Hyderabad. 4 Municipal Corporation of Hyderabad, Rep,. by Asst. City Planner, CIrcle - III, .....RESPONDENTS Petition under Article 226 of the constitution of India praying that in the circumstances stated in the Affidavit filed herein the High Court may be pleased to issue a writ or Mandamus or any other appropriate writ, order or direction and; a) By declaring the action of the Respondents No. 1 to 3 in making the construction in their property bearing No. 1-8-569 to 573 at Azambad Industrial Area, R.T.C. Cross Road, Hyderabad contrary to the sanctioned plan without leaving set back as illegal and unconstitutional. b) To declare the action of the Respondent No.1 in not initiating action against Respondent No.1 and 3 for committing deviations and for not leaving the required set backs as illegal and unconstitutional. c) To direct the Respondent No.4 to demolish the illegal construction made by the Respondents No.1 to 3 contrary to the Sanction plan, in their property bearing No. 1-8-569 to 573 at Azambad Industrial Area, R.T.C. Cross Road, Hyderabad. d) And to pass such other order or orders which this Honourable Court may deem fit and proper in the circumstances of the case. Counsel for the Petitioner:MR.WASIM AHMED KHAN Counsel for the Respondent No.: . The Court made the following : THE HON'BLE MR JUSTICE V.ESWARAIAH WRIT PETITION No.10772 of 2005 ORDER: Heard the learned counsel appearing for the petitioner, learned counsel appearing for respondents 1 to 3 and the learned Standing Counsel appearing for the 4th respondent. Petitioner seeks to issue a Writ of Mandamus:- (a) declaring the action of respondents 1 to 3 in making construction in their property bearing Nos.1-8-569 to 573 situated at Azambad Industrial Area, R.T.C. Cross Road, Hyderabad, contrary to the sanction plan without leaving set backs as illegal and unconstitutional; (b) declaring the action of the 4th respondent in not initiating action against respondents 1 and 3 for committing deviations and for not leaving the required set backs as illegal and unconstitutional; and (c) to direct the 4th respondent to demolish illegal construction made by respondents 1 to 3 contrary to the sanction plan in their property bearing No.1-8-569 to 573 situated at Azamabad Industrial Area, R.T.C. Cross Road, Hyderabad. Admittedly, respondents 1 to 3 are private persons and, therefore, this court cannot issue any Writ of Mandamus declaring their action as illegal and arbitrary in making illegal construction contrary to the sanction plan. But, however, insofar as the other reliefs i.e., declaring the action of the 4th respondent in not initiating action against respondents 1 and 3 for committing deviations and for not leaving the required set backs as illegal and unconstitutional; and to direct the 4th respondent to demolish illegal construction made by respondents 1 to 3 in their property, contrary to the sanction plan, can be entertained. It is the case of the petitioner that he is the owner and possessor of the property bearing Nos.1-8-565/1 and 2, Plot No.66, situated at Azamabad Industrial Area, R.T.C. Cross Road, Hyderabad. The property of the petitioner is situated on the western side and the property of respondents 1 to 3 is situated on the eastern side and both the properties are abutting. It is stated that respondents 1 to 3 obtained permission for construction of building consisting of cellar, ground + four upper floors vide permit No.62/88 in File No.0034/CSC/TP-3/2003, dated 11-06-2004. It is further stated that respondents 1 to 3 constructed their building in deviation of the sanction plan. Therefore, the petitioner filed a suit O.S.No.6017 of 2004 on the file of the X Junior Civil Judge, City Civil Court, Hyderabad, and obtained an order, in which, respondents 1 and 2 herein gave an undertaking before the court below that they would construct their building strictly in accordance with the sanction plan. It is stated that the said undertaking given by respondents 1 and 2 has not been adhered to and they have violated their own undertaking and, therefore, the petitioner filed a contempt case and the said I.A. is still pending on the file of the X Junior Civil Judge, City Civil Court, Hyderabad. It is further stated that the 4th respondent colluded with respondents 1 to 3 and therefore, he is not taking any action against them. It is stated that the said deviations have not been rectified or removed and, therefore, the petitioner is constrained to file this writ petition seeking a direction to the 4th respondent to demolish illegal constructions made by respondents 1 to 3 in their property. The 4th respondent filed a counter stating that respondents 1 to 3 constructed cellar, ground and four upper floors, with the following deviations:- Sl.No. Sides Open Space insisted Open space maintained 1. Front 8 meters Maintained 8 meters for cellar and 7.5 to 8 meters for upper floors and by projecting 1.5 to 1.8 meters projection of Balcony 2. Rear 9 meters Maintained 8 meters for cellar and 7.5 to 8 meters for upper floors and by projecting 1.5 to 1.8 meters projection of Balcony 3 East 5 meters for Cellar with 3.5 wide projection of slab so as to maintain 1.5 meter clear open space Maintained 1.3 meters for Cellar and maintained 4.67 meters to 4.7 meters for upper floors by projecting 1.2 to 1.8 meters balcony 4. West 3 meters for Cellar with 1.5 wide projection of slab so as to maintain 1.5 meter clear open space Maintained 3.3 meters for Cellar and maintained 1.6 meters for upper floors by p r o j e c t i n g 0.6 meters balcony. It is stated that the petitioner filed a suit O.S.No.6017 of 2004 on the file of the X Junior Civil Judge, City Civil Court, Hyderabad, against the respondents and the same is pending. Respondents 1 to 3 herein have also filed O.S.No.7358 of 2004 on the file of the same court and obtained an injunction order in I.A.No.1997 of 2004, dated 07-12-2004, against the Municipal Corporation, Hyderabad and, therefore, the deviations could not be demolished. In view of the said injunction order, it cannot be said that the Municipal Corporation colluded with respondents 1 to 3. It is further stated that the petitioner illegally constructed entire second floor without any permission and without living any set backs and apprehending action against him, the petitioner filed a suit O.S.No.3147 of 2000 before the XIV Junior Civil Judge, City Civil Court, Hyderabad, and the said suit was dismissed. Against which, A.S.No.56 of 2004 was filed and the same was also dismissed. In view of the injunction order obtained by respondents 1 to 3, Municipal Corporation could not initiate any action against respondents 1 to 3 and however, as and when the injunction order is vacated, the illegal constructions will be demolished. Admittedly, the suit filed by the petitioner against respondents 1 to 3 in O.S.No.6017 of 2004 is pending on the file of the X Junior Civil Judge, City Civil Court, Hyderabad, and the suit filed by respondents 1 to 3 in O.S.No.7358 of 2004 is also pending on the file of the same court, in which, the injunction order is subsisting. Therefore, it cannot be said that the Municipal Corporation is colluded with respondents 1 to 3. If the undertaking given by respondents 1 and 2 is violated, it is open for the petitioner to take appropriate action against them in the pending suit. But, however, when both the suits are pending on the file of the same court, there cannot be any justification in passing different orders. Any injunction cannot be granted to make illegal constructions contrary to the sanction plan. I am of the opinion that there cannot be any justification on the part of the 4th respondent in not taking any action against the petitioner in making illegal construction of entire second floor without obtaining any permission, inspite of the dismissal of the suit filed by the petitioner, which was also confirmed in the first appeal. Having regard to the facts and circumstances of the case, the writ petition is disposed of directing both the parties to take appropriate steps for clubbing of both the suits i.e., O.S.Nos.6017 of 2004 and 7358 of 2004 on the file of X Junior Civil Judge, City Civil Court, Hyderabad, for early disposal. As and when the suits are disposed of, the 4th respondent is directed to take appropriate steps for implementation of the sanction plan and demolish the illegal constructions made by the petitioner as well as respondents 1 to 3. However, the suits may be disposed of without influenced by any of the observations made in this order. Further, this order will not preclude both the parties to avail benefit under Building Penalisation Scheme. Accordingly, the writ petition is disposed of. There shall be no order as to costs. ___________ 27-03-2008 Prv ..... REGISTRAR // TRUE COPY // SECTION OFFICER To 1.2CCs to 2.2CD copies Form-NIC-OGS/WP{VSMI}