THE HONOURABLE SRI JUSTICE B.SESHASAYANA REDDY WRIT PETITION NO.11760 OF 2005 DISPOSED OF ON 28-11-2005. BETWEEN: G.SADANAND AND OTHERS …..PETITIONERS AND MUNICIPAL CORPORATION OF HYDERABAD & OTHERS ….. RESPONDENTS THE HONOURABLE SRI JUSTICE B.SESHASAYANA REDDY WRIT PETITION NO.11760 OF 2005 O R D E R : 1. The petitioners who are four in number has filed this writ petition with a prayer to issue a writ of mandamus declaring the proceedings of Chief City Planner, Municipal Corporation of Hyderabad-2nd respondent as arbitrary and illegal apart from being violative of the order dated 19.4.2005 passed in W.P.No.3104 of 2005. 2. The case has a chequered career. The petitioners are the owners and possessors of the premises bearing municipal No.6-3-902/A, Somajiguda, Hyderabad admeasuring 2006.40 square meters. They submitted an application on 16.4.2003 u/ss 428 to 433 of Hyderabad Municipal Corporation Act, seeking permission for construction of basement, stilt + upper 5 floors-a ‘U’ type commercial complex in the said premises. When the the petitioners were proceeding with the construction of cellar in the said premises, a notice dated 17.10.2002 came to be issued to them. The notice reads as follows: “ During the course of inspection it is observed that you have excavated the cellar in Pr.No.6-3-902/A situated at Somajiguda. You have dug the cellar without leaving the required setbacks. Thereby the walls have developed the cracks and it may fall at any movement causing damage to the property and lives of the neighbors. This is occurring due to non-compliance of the rules and regulations and negligence by you. If any damage with regard to the life and property of the neighbours occurs, you will be held responsible and the action will be initiated as per rules.” The building permission application of the petitioners came to be refused by the respondents–Corporation under letter No.0396/CSC/TPS/2003/1739, dated 28/29- 4-2003. The reasons for refusal of the building permission as stated in the above- referred letter are: “1) In the cross section plan connecting ramp approaching from main road is not indicated. 2. In the cross section plan “AA” “BB” the details of nala has not indicated. 3. The actual ground level towards main roadside has not indicated in the Section plan of “AA” & “BB”. 4. On side parking shown in ground floor towards main road is not feasible. 5. The party has not indicated the road widening affected area in the proposed plan. 6. The use of typical floor plan has not correctly mentioned it is either for show rooms or for offices soon as to calculate the correct No. of car parking spaces. 7. Party has unauthorisedly excavated the cellar. In view of the above, you are informed to rectify the above defects and submit the received plan by complying with all the above requirement within six months from the date of this intimation other wise the file will be closed and no further correspondence will be entertained with this reference afterwards.” The petitioners re-submitted the plan on 3.5.2003. They were informed that the building committee examined the proposal and requested them to remit the following fees and charges within ten days under a letter dated 23-7-2003: 1) Building permit fee : 1,64,000.00 2) Development charges : 5,99,693.00 3) Betterment charges : 5,99,693.00 4. External betterment Charges : 1,99,898.00 5) Security deposit : 4,54,313.00 6. Land use conversion Charges : Nil 7) Impact fee : 17,65,250.00 8) 10% Impact fees : 1,76,525.00 9) Sub division/Layout charges: Nil 10) Compounding fee : 8,425.00 ------------------- Total : 33,68,104.00 ========== The petitioners were also directed to submit an undertaking on Rs.20/- non-judicial stamp paper separately the following: 1. Handing over the site affected 183.00 square meters in road widening to MCH in original and two Photostat copies along with 2 clothes and 3 ammonia prints showing the affected portion towards northern side. 2. To furnish an undertaking on Rs.100/- non judicial stamp paper duly notarized for not to keep construction material/debris on roads, parking, balconies, to pay special sanitation fee and garbage collection charges and not to convert into multiple residential units. 3. To furnish the security deposit in cash or bank guarantee or FDR pledged with MCH Rs.100/- per square meter of total built up area calculated under item of serial No.5. 4. To furnish copy of upto date tax receipts in respect of the property. (upto 31.3.2004). 5. 36 no. of trees to be planted in the site area. 6. Rain water harvesting structures to be constructed. 7. To furnish an undertaking in respect of the supervision of the construction and quality of material from the builder/owner, architect, structural engineer, site engineer. 8. To furnish Soil Test Certificate and structural stability certificate. 9. Display board photographs (2 copies) showing the plan, elevation section, site plan and location plan of the proposed complex. 10. Undertaking from builder/developer/architect and structural engineer/ site (project engineer regarding their responsibility, collectively/ individually for construction of the building as per the sanctioned plan without any deviations; to follow structural design submitted to the Corporation to use good quality immediately as per the National Building Code and take measures to take strictly safety. 11. To fulfill the requirement as per G.O.Ms.No.541, M.A., Dated 17.11.2000. While the petitioners were proceeding with the constructions contrary to the sanctioned plan, a notice dated 26.7.2004 u/s 452 of Hyderabad Municipal Corporation Act, 1955 (for short Act) came to be issued to the petitioners as why the building work or such portion of the work found to be done contrary to the sanctioned plan should not be removed/altered so as to bring it in conformity with the sanctioned plan. The petitioners submitted reply on 29.7.2004. They filed W.P.No.13458 of 2004 questioning the notice dated 26.7.2004, which came to be disposed of on 30.7.2004 directing the respondents-Corporation to accord personal hearing before passing any order u/s 636 of the Act. The said order reads as under: “ The learned Standing Counsel for the Municipal Corporation of Hyderabad submits that after following the necessary procedure u/s 636 of the Act only the authorities have to proceed further in the matter. In view of the same, if the petitioners require any personal hearing to explain their case, the respondent authorities shall provide such opportunity to the petitioners before passing any order u/s 636 of the Act and if any such order is passed the same shall not be implemented for a period of two weeks enabling the petitioners to avail the appropriate remedy available to them. Till passing of such order u/s 636 of the Act, the respondent authorities shall not demolish the structure pursuant to the impugned notice.” Pursuant to the order passed in the said writ petition, a notice dated 5.8.2004 came to be issued to the petitioners directing them to appear before the respondents- authorities with all relevant documents on 9.8.2004 at 11 A.M. The petitioners sought for time and their request came to be acceded. While extending the time for hearing, the respondents-authorities informed the petitioners not to proceed with any type of construction failing which action will be taken on the same as per rules. The relevant portion of the notice dated 19/20-8-2004 reads as under: “ In pursuance of the above court orders this office has conducted hearing with you on 9.8.2004. In the hearing Sri Krishna, Sri Shiva Mohan Reddy and others were present. You have requested to postpone the hearing. Your request for extending the time for hearing has been considered and you are requested to submit your explanation along with the material papers within 10 days from the date of issuing of this letter for taking further action. Further you are informed for not to proceed with any type of construction failing which action will be taken on the same as per rules.” Finally the respondents-authorities passed orders on 25.10.2004 under section 636 of the Act whereby the petitioners were asked to remove/demolish the deviated portions mentioned in the show cause notice dated 6.10.2004. The petitioners filed W.P.No.19824 of 2004 assailing the order-dated 25.10.2004. The relief sought for in the said writ petition is as follows: “ For the reasons stated in the accompanying affidavit that this Honourable Court may be pleased to issue a Writ, order or Direction more particularly one in the nature of writ of mandamus declaring the action of the 1st respondent in issuing the impugned notice U.C.No.0474/UC/CS /MCH/03-04, dt.25-10-2004 as arbitrary, illegal and violative of Article 14 to 21 of the Constitution of India consequently set aside the same as the same is also in gross violation of provisions of the HMC Act, 1955 and in gross violation of the principles of Natural justice and pass such other order or orders as this Honourable Court may deem fit and proper in the circumstances of the case.” One of the neighbours to the petitioners premises namely Ms.Jagnandan Mallik filed WPMP.No.1328 of 2004 seeking her impleadment as party respondent in the said writ petition. On the implead petition being allowed, the petitioners requested the court for the withdrawal of the writ petition itself. This Court while dismissing the writ petition (WP.No.19824 of 2004) on the request of the petitioners on 4.3.2005 passed the following order: “ 2. The contention of the learned counsel for the third respondent, who came on record by virtue of orders dated 4.3.2005 in WPMP.No.1328 of 2005, is that when the Municipal Corporation gave a notice asking the writ petitioners to stop the unauthorized construction, they filed this writ petition and obtained an interim order and when the third respondent filed a petition to implead himself as a party to bring to the notice of the court about the facts that have happened, and after the Municipal Corporation filed its counter, petitioner is coolly withdrawing the writ petition after completing construction under the guise of the orders of stay obtained from this Court. 3. In the circumstances stated, the writ petition is dismissed with costs. Advocate fee is fixed at Rs.2500/-. It is made clear that if the construction made by the petitioners are in violation of the provisions of Building Rules or any other provisions of the Hyderabad Municipal corporation Act, the Municipal Corporation is at liberty to proceed against the petitioners.” The revised plan submitted by the petitioners came to be rejected by order dated 28/29.12.2004 and it reads as under: “ With reference to your building application 1st cited, it is to inform that the proposals submitted by you for the proposed construction of Sub-cellar, Cellar, Ground + 5 upper floors in Pr.No.6-3-902/A, Somajiguda, Hyderabad have been examined and the proposals are refused and the plans are unapproved on the following grounds: 1. You have constructed sub-cellar maintaining column line 2.75 mtrs towards southwest corner as against permitted 3.9 mtrs and also extended the sub cellar to the extent of 1.25 mtrs in the said corner by reducing the cellar setback by 1.5 mtrs. 2. You have extended the sub cellar boundary to the extent of 4.60 mtrs towards eastern side as against the permitted open space of 7.53 mtrs and extended beyond the permitted cellar/basement line. 3. You have maintained 1.60 mtrs at northwest corner as against permitted 3.0 mtrs cellar/basement line. 4. You have constructed cellar maintaining column line 2.75 mtrs towards southwest corner as against permitted 3.0 mtrs and also extended the sub cellar to the extent of 1.25 mtrs in the said corner by reducing the cellar setback by 1.5 mtrs. 5. You have maintained 1.60 mtrs at northwest corner as against permitted 3.0 mtrs cellar/ basement line. 6. You have laid the roof for stilt floor extending the roof up to the sub-cellar and cellar line against the sanctioned plan.” The matter did not rest there. The petitioners approached this court by filing W.P.No.3104 of 2005 alleging that the respondents-authorities have not considered revised plans submitted by them and therefore sought for a direction to consider their revised plan. The said writ petition came to be disposed of on 19.4.2005, the relevant portion of which reads as follows: “ The objection raised by the learned Standing Counsel for the Corporation that since the revised plans submitted by the petitioners were already rejected, the petitioners are not entitled to seek reconsideration cannot be accepted since clause 3 of G.O.Ms.No.423, dated 31.7.1998 provides for Review of rejection of building applications. It is clear from the said clause that on rejection of a building application, the owner may represent the case within seven days in which event after hearing, the concerned authority shall communicate its decision on the representation. Hence, as rightly contended by the learned Counsel for the petitioners, the 1st respondent ought to have reconsidered the issue in pursuance of the representation made by the petitioners on 30.12.2004. So far as the third respondent is concerned, it is clear that her claim is only with regard to the alleged damage caused to her building on account of the unauthorized constructions made by the petitioners. If that be so, it is always open to her to work out the common law remedy for the damages, if any, she is entitled to, but the same cannot be gone into by this Court. Since evidently the grievance of the writ petitioners in the case on hand is only with regard to the inaction on the part of the respondent Corporation to consider the revised plan submitted them, the dispute is solely between the petitioners and the Corporation regarding alleged deviations and the request of the petitioners for sanction of the revised plan which has to be considered by the respondent Corporation in terms of G.O.Ms.No.483, dated 24.8.1998 and the guidelines under the Govt. memo dated 14.11.2003. The third respondent being a third party to the said dispute is not entitled to intervene. Accordingly, the orders dated 28/29-12-2004 and 3.3.2005 are set aside and the writ petition is disposed of with a direction to the respondent-Corporation to consider the request of the petitioners for sanction of the revised plans afresh in terms of G.O.ms.No.483, dated 24.8.1998 and G.O.Ms.No.423, dated 31.7.1998 and the guidelines under the Government Memo dated 14.11.2003 and to pass appropriate orders in accordance with law as expeditiously as possible preferably within a period of four weeks from the date of receipt of this order. It is made clear that before taking such a decision, the petitioners shall be afforded an opportunity of personal hearing duly informing them the date of hearing in advance. Till such a decision is taken and appropriate orders are passed, the petitioners shall not proceed with the construction of any structures as pointed out in the notice dated 26.7.2004. However, it is open to them to carry on the constructions in respect of undisputed areas as per the sanctioned plan dated 22.9.2003 and the respondents shall not interfere with the same.” 3. It is pertinent to highlight the observation made by this Court in the above referred order that liberty has been given to the petitioners to carry on the constructions in undisputed areas as per the sanctioned plan dated 23.9.2003. In other words, the petitioners shall not proceed with the constructions in deviation of the original sanction plan dated 23.9.2003 i.e. stilt + 5 upper floors. Personal hearing was given to the petitioners and the order impugned in this writ petition came to be passed on 26.5.2005 whereby the petitioners were informed that appropriate relaxations were already considered in view of the petitioners handing over a part of the land in road widening and there is no provision under G.O.Ms.No.483, dated 24.8.98 to relax the rules once again. Thereby the rejection of the revised plan came to be approved. The relevant portion of the impugned order in the present writ petition reads as follows: “ In light of the powers delegated under G.O.Ms.No.483 MA, dt.24.8.1998 permission has been accorded to the applicant staking into consideration the building line and public safety. Applicant preferred to undertake the construction beyond the permission and against the directions of Honourable Court taking for granted that they are entitled for regularization of unauthorized construction portion of building by way of relaxation of building rules once again under G.O.Ms.No.483 M.A, dated 24.8.98, even if the considerations like building line, public safety are at stake and did the excavation for sub-cellar upto 9.0 mts from the ground level against the recommended depth of the Geo-technical consultant for 6 mts. The appropriate relaxations were already considered in lieu of the property handed over by applicants. There is no provision under G.O.Ms.No.483 M.A, dt.24.8.98 to relax the rules once again. Your request is rejected. You are required to remove/pull down the deviations to the sanctioned plan viz: 1. Unauthorisedly constructed sub-cellar, 2. Extended 4.60 mts, roof of cellar and stilt floor beyond the permitted building line towards eastern side. 3. Extended 1.40 mts, construction in the permitted 3.00 mts, and setback in northwest side. 4. Extended 1.25 mts cellar boundary beyond the permitted 3.0 mts, setback towards southwest. If you fail to remove/pull down the violations to sanctioned plan within 24 hours, the same will be removed/pulled down by the authority and the expenses thereof will be recovered from the applicants.” 4. This writ petition was filed on 28.5.2005 by way of House Motion. The petitioners moved WPMP.No.14996 of 2005 seeking direction to the respondents not to indulge in demolition or in any way interfere with the possession and progress of the construction in respect of the premises bearing Municipal No.6-3-902 A, Somajiguda, pending the writ petition. While issuing rule, interim direction upto 10-6- 2005 came to be granted, which was subsequently extended from time to time. Narration of facts of the case would be incomplete if no mention is made about the filing of suit being O.S.No.225 of 2004 on the file of Chief Judge, CCC, Hyderabad on 13.7.2004 by the petitioners and their futile attempts to secure some interim orders. 5. Since certain allegations came to be made against Ms.Jagnandan Mallik in the additional affidavit, the said Ms.Jagnandan Mallik filed WPMP.No.16983 of 2005 seeking her impleadment as party respondent. Subsequently the writ petitioners withdrew the allegations made against Jagnandan Mallik and thereupon her implead petition came to be dismissed on 8.11.2005. 6 . Respondents 1 and 2 filed counter affidavit and moved vacate petition being WVMP.No.1827 of 2005. The petitioners filed reply affidavit on 27.7.2005. Thereupon the respondents filed additional counter affidavit on 4.10.2005. The petitioners filed reply affidavit on 25.10.2005. The petitioners also moved WPMP.No.15029 of 2005 on 6.6.2005 pleading additional ground in the main writ petition that the 2nd respondent has passed the order impugned in the writ petition succumbing to political pressures without application of mind to the legal aspects. The petitioners also filed WPMP.No.25478 of 2005 on 9.9.2005 pleading ground in assailing the order impugned in the writ petition that the 2nd respondent has no jurisdiction to pass it. Both the WPMPs came to be allowed on 27.9.2005 permitting the petitioners to plead additional grounds. Yet another application in WPMP.No.30289 of 2005 has been moved by the petitioners on 2.11.2005 seeking an order of injunction restraining the respondents-authorities not to indulge in demolition of any part of the building in question without following due process of law. 7. The purpose of narrating sequence of events that occurred right from the date of the respondents-authorities bringing to the notice of the petitioners that their excavation for construction of cellar is unauthorized to the date of the order impugned in the writ petition is not to make the judgment bulky, but to understand and appreciate the stand of the parties in the writ petition. 8. Heard learned counsel appearing for the petitioners and learned Standing Counsel appearing for the respondents. 9. Learned counsel appearing for the petitioners submits that the petitioners have left an area of 179 square meters worth about Rs.70 lakhs without claiming any compensation even before granting the building permission and the petitioners have constructed a storm water drain running adjacent to the premises spending about Rs.20.00 lakhs. He further submits that a compounding fee of Rs.8,425/- has been paid by the petitioners for constructions made prior to building permission sanction and thus the constructions even if unauthorized have been regularized. A further assertion has been made that the petitioners are proceeding with the construction as per the sanctioned plan without variations and deviations. A feeble argument has been advanced that even if there are any deviations or violations, they do not warrant demolition of the constructions. He strenuously contends that 2nd respondent is not empowered to pass orders on the revised plan submitted by the petitioners and therefore the impugned order is liable to be set aside. What he means to say is that under G.O.Ms.No.423 M.A. dated 31-7-1998 it is 1st respondent who has to pass orders with regard to regularization of floor area ratio and other standards of building requirements. In support of his submissions, reliance has been placed on the following decisions: 1. CORPORATION OF CALCUTTA v. MULCHAND AGARWALA 2. K.PANDURANGARAO V. COMMR., MUNCIPAL CORPN. 3. 3 ACES V. MCH 4. MUNICIPAL CORPORATION OF HYDERABAD VS. SHAMSUDDIN HASSAN 5. ROHTAS INDUSTRIES LTD. V. S.D.AGARWAL 6. SWEETY BUILDERS PVT. LTD V. M.C.H. 7. J.ANURADHA V. THE GOVT. OF A.P. In the first cited decision, it has been held that whether there has been a complaint from the public would not as such be material for deciding the question, though if there was one, it would be a piece of evidence in deciding whether the interests of the public have suffered by reason of the breaches. It has been further held that in order for demolition of the building under section 363 of Calcutta Municipal Act what has to be decided is whether the breaches are of a formal or trivial character in which case the imposition of a fine might meet the requirements of the case, or whether they are serious and likely to affect adversely the interests of the public in which case it would be proper to pass an order for demolition. In the second cited decision, the writ petitioners therein filed an application before the Commissioner, MCH under sections 452 and 636 of the Act requesting the Commissioner to take action for removal of the unauthorized constructions made by the hut dwellers on his property. But his request was of no avail. He filed a writ petition praying for a writ of mandamus to be issued against Commissioner, contending that the above two sections confer a power on the Commissioner to remove the unauthorized constructions and the Commissioner failed to exercise that power. In those circumstances it has been held as follows: “ The permissive words of sections 452 and 636 do not create a duty in the Commissioner to issue an order of demolition of unauthorized construction without any discretion in the matter. (2) The object for which the power is conferred on the Commissioner is not for the purpose of enforcing any right of a person or class of persons. Consequently there is no duty cast on the Commissioner to exercise it for the benefit of a person or class of persons who have no right, when required on their behalf. The petitioner has no legal right to ask for the enforcement of that power. In other words, the Commissioner owed no legal obligation to the petitioner to enforce that power for his benefit. (3) The Commissioner cannot, in the absence of adequate police assistance, enforce the power of demolishing the huts unauthorisedly raised.” In the 3rd cited decision, a Full Bench of this court formulated guidelines to be followed by the Municipal Corporation of Hyderabad in respect of illegal constructions. Para 36 of the judgment needs to be noted and it is thus: “ Having regard to the rampant, illegal and unauthorized constructions raised in the country as observed in STATE OF MAHARASHTRA’s case (supra 11) before parting with this case, we would like to formulate the following guidelines to be followed by the respondent