HON'BLE SRI JUSTICE RAMESH RANGANATHAN WRIT PETITION No.5962 of 2010 13th April 2010 Between: Sri Prakash Chandra Srivastava … PETITIONER(S) and The Greater Hyderabad Municipal Corporation, rep. by its Commissioner, Tank Bund Road, Hyderabad and another … RESPONDENT(S) HON'BLE SRI JUSTICE RAMESH RANGANATHAN WRIT PETITION No.5962 of 2010 ORDER: Questioning the action of the second respondent, in issuing the notice dated 10.03.2010, as arbitrary, unconstitutional and unreasonable the present writ petition is filed. The petitioner also seeks a consequential direction to the respondents not to interfere with the structures in the existing premises No.1-2-215/D, Gagan Mahal, Domalguda, Hyderabad. The petitioner is a builder of two buildings in Domalguda called Shiva’s Palace Phase-I and Phase-II. He obtained a sanctioned plan and permission for construction, vide permit No.359/12 dated 08.11.1991, for construction of a building with stilt plus ground plus two upper floors as residential apartments. Subsequently a revised sanctioned plan, vide permit No.417/63 dated 08.07.1993, was issued. Seeking regularization of the deviations, in construction of the building, the petitioner filed an application under the building regularization scheme notified in G.O.Ms. No.419 dated 30.07.1998. He claims that he had paid the prescribed penalty and that the Greater Hyderabad Municipal Corporation had regularized the building, consisting of stilt plus ground plus four upper floors, vide proceedings dated 24.02.2000. At the Southwest corner of the stilt floor of the Phase-I building there exists a small temple which the petitioner claims to have established even prior to commencement of construction of the building. In addition, the petitioner constructed an office room, for the temple, over an extent of 600 sq. ft. on the Southwest corner of the building. It is the petitioner’s case that only after the office room was constructed were the upper floors raised and that the flat owners were aware of the existence of the temple and its office even at the time of construction. While matters stood thus, the second respondent issued a notice, under Section 636 of the Hyderabad Municipal Corporations Act, 1955 (hereinafter referred to as – ‘the Act’), dated 30.10.2009 calling upon the petitioner to remove the structures within three days. Aggrieved thereby, the petitioner filed W.P. No.24283 of 2009 and the said Writ Petition was allowed, by order dated 10.11.2009, on the ground that, without issuing prior notice under Section 452 of the Act, a notice under Section 636 of the Act could not have been issued straightaway. This Court left it open to the respondents to issue a notice under Section 452 of the Act if any violation was noticed. The notice, under Section 452 of the Act, was issued on 02.03.2010 to which the petitioner submitted his explanation on 09.03.2010 and, thereafter, the impugned notice under Section 636 of the Act was issued on 10.03.2010. The notice under Section 452 of the Act records that the petitioner had made constructions against the sanctioned plan; had converted the parking space in the cellar floor for other than parking purpose; and had carried out unauthorised construction which was causing inconvenience to the inmates of the building. The petitioner was called upon to explain why the unauthorized construction in the parking area should not be pulled down/demolished. In reply, the petitioner stated that earlier he had filed a complaint before the Consumer Disputes Redressal Forum-III at Hyderabad and, since the building was constructed pursuant to the permission accorded on 08.11.1991, he found it strange that the Municipal Corporation was issuing a notice alleging illegal construction in the parking area. Sri P. Veera Reddy, learned counsel for the petitioner, would question the validity of the proceedings, issued under Section 636 of the Act, on the following grounds: (1) the notice under Section 452 of the Act, which preceded the Section 636 notice, was vague; (2) as there was more than adequate parking area, there was no necessity for demolition of the temple in the Southwest corner of the building and the office room of an extent of 600 sq. feet adjacent thereto. Learned counsel would rely on 3 ACES, HYDERABAD vs. MUNICIPAL CORPORATION OF HYDERABAD[1]; G.KAMALA KUMARI vs. G.SAMBI REDDY[2]; and MUSUNURU RAJANI vs. VIJAYAWADA MUNICIPAL CORPORATION[3]. The scheme for regularization of deviations, in G.O.Ms.No.419 dated 30.07.1998, stipulates that any construction on the stilt floor cannot be regularized unless it is meant exclusively for the purpose of parking. On a query from this Court as to whether the Act, the Rules, the Regulations, and the building bye-laws enable construction of a building other than for parking in the Stilt Area of a Multi-Storeyed Building, Sri P. Veera Reddy, learned counsel for the petitioner, would submit that, while the Regularization Scheme in G.O.Ms.No.419 dated 30.07.1998 did prohibit construction of an office building on the stilt floor, the fact remains that the Municipal Corporation had accorded permission, regularized deviations in the construction of the building and it was not open to them to now take steps for demolition of the office room in question. Learned counsel would contend that, in any event, the temple, which has been constructed in a small portion on the Southwest corner of the building, existed even prior to the commencement of the construction of the building and not thereafter. It is necessary to note that the respondent-Corporation, in its counter affidavit, has specifically stated that they had not regularized construction on the stilt floor since it is meant exclusively for parking area. Even otherwise, once it is conceded that the Act and the building bye-laws do not permit use of the stilt floor for any purpose other than for parking, and that the building regularization scheme in G.O.Ms.No.419 dated 30.07.1998 specifically prohibits regularization of deviations in the form of constructions made in the stilt area, the mere fact that the officials of the Municipal Corporation of Hyderabad had regularized such construction contrary to law is of no consequence, since an illegal act by officers of the Municipal Corporation of Hyderabad would not confer on the petitioner any right to claim that he should be permitted to retain an illegal construction which cannot even be regularized under the Regularisation Scheme notified in G.O.Ms. No.419 dated 30.07.1998. In 3 ACES1 a Full Bench of this Court, following the judgment of the Supreme Court in PRATIBHA CO-OPERATIVE HOUSING SOCIETY LTD. vs. STATE OF MAHARASHTRA[4], faulted the Corporation in not effectively dealing with illegal construction. The Full Bench, which laying down guidelines for guidance of the Corporation, made it clear that the guidelines were only illustrative and not exhaustive and that the discretion to be exercised by the Corporation should not be arbitrary or capricious. Para-36 (1) of the said judgment, on which reliance is placed by Sri P. Veera Reddy, Learned counsel for the petitioner, reads thus: “In cases where applications having been duly filed in accordance with law, after fulfilling all requirements, seeking permission to construct buildings and permission was also granted by the Corporation, the power of demolition should be exercised by the Corporation only if the deviations made during the construction are not in public interest or cause public nuisance or hazardous or dangerous to public safety including the residents therein. If the deviations of violations are minor, minimal or trivial which do not affect public at large, the Corporation will not resort to demolition.” It is only in cases where the application filed is in accordance with law would any construction made thereafter require the Corporation to ascertain as to whether the deviations are minor, minimal or trivial in nature and in case such deviations are of such a character to decide whether it was not in public interest, or hazardous/dangerous to public safety, or causes a public nuisance in which event alone should the building be demolished. The application filed by the petitioner in the present case, seeking regularization of deviations in construction, is admittedly not in accordance with the Regularisation Scheme in G.O.Ms. No.419 dated 30.07.1998, as it stipulates that any construction made in the stilt area, which is meant for parking, cannot be regularized. Reliance placed by Sri P. Veera Reddy, Learned counsel for the petitioner, on the judgment of the Full Bench in 3 ACES1 to contend that the respondent-Corporation cannot proceed to demolish the construction on the stilt floor of the building, though the construction made in the stilt floor is contrary to G.O.Ms. No.419 dated 30.07.1998, does not, therefore, merit acceptance. Regarding the contention that the impugned notice is vague, it is no doubt true that, instead of using the word stilt floor, the notice issued by the Corporation under Section 452 of the Act refers to the cellar portion of the building as the space earmarked for the parking area. The Building in question, admittedly, does not have a cellar portion. It is not as if the petitioner did not understand the contents of the notice as a reference to the Stilt floor as, in his reply to the show cause notice, the only contention he raised is that there is more than adequate space provided for parking. In fact the Section 452 notice itself calls upon the petitioner to explain why the unauthorized construction in the parking area in the premises No.1-2-215/D, which is contrary to the sanctioned plan, should not be pulled down/demolished. As the petitioner has understood the contents of the notice to mean the stilt floor, the mere fact that the said notice uses the word ‘cellar floor’ for parking would not render the notice issued under Section 452 of the Act vague or fanciful. Reliance placed on the judgments of this Court in G.KAMALA KUMARI2 and MUSUNURU RAJANI3 are therefore misplaced. On being asked whether the petitioner was, on his own accord, willing to demolish the office room, Sri P. Veera Reddy, Learned counsel for the petitioner, on instructions, would express the petitioner’s inability to do so. I see no reason, therefore, to interfere with the notice issued under Section 636 of the Act in so far as demolition of the office room, constructed on the stilt floor, is concerned. In so far as the temple, located in the Southwest corner of the building, is concerned the notice issued under Section 452 of the Act makes no mention thereof. Sri R. Ramachandra Reddy, Learned Standing Counsel for the respondent-Corporation, would submit that the Corporation does not, as at present, propose to demolish the temple. It is wholly unnecessary, therefore, for this Court to go into the question whether or not the temple constructed on the Southwest corner of the building necessitates demolition or not. The Writ Petition as filed is devoid of merits and is, accordingly, dismissed. However, in the circumstances, without costs. _____________________________ RAMESH RANGANATHAN,J 13th April 2010 CVRK/MRKR [1] AIR 1995 AP 17 [2] 1989 (2) APLJ 120 [3] 2005 (4) ALT 11 [4] AIR 1991 SC 1453