Mohd. Akbar v. 1, The State of Telangana

Petition under Article 226 of the Constitution of lndia praying that in the circumstances stated in the affidavit filed therewith, the High Court may be pteased to lssue a Writ order or direction more particularly one in the nature of Writ of Mandamus, declaring the inaction of 2nd and 3rd respondents against the iltegal constructions raising by the 4th respondent by encroaching the public lane aboUt 3'fe-etS''to 5 feetS at House premises beaiing No:20:4-46g;-Anand-Bd5thi;-- Khilwath; Hyderabad inspite of the representations dated 4.8.2015, 4.8.2015 which is registered Grievance Cell No. 2015-08-PV1 87286 and registered legal notice dated 8.09.2015 made by the Petitioner as being illegal, arbitrary, unconstitutional, dereliction of duties and violation of the provisions of the Greater Hyderabad Municipal Corporation Act 1955 and consequentially direct the ''- I i I I Respondents 12 and 3 to demolish the illegal construction raised by the 4th respondent at House premises bearing No.20-4-46g, Anand Basthi, Khirwath, Hyderabad by r:ncroaching the 3fts to 5 feets pubric tane. OF P 20 Petition ttnder section 151 cPC praying that in the circumstances stated in the affidavit filel in support of the petition, the High cogrt may be pleased direct the Respondenls No'2 and 3 to restrain the 4th respondent for making the further constructions' at House premises bearing No.20- 4-469, Anand Basthi, Khilwath, Hyderabad by considering petitioner's representation dt. 4.g.2015 and 20.4.2015 which is registered Grievance celt No. 2015-08-pv1 g72g6 and registered legal notice dt.8.9.2015. Counsel for the petitioner : SRI S.M.SUBHANI S M counsel for the Respondent No.1 : Gp FoR McpL ADMN-URBAN DEv counset for Respondents No.2&3 : sRr M.ARUN KUMAR, sc FoR GHMC Counsel for Respondents No.4 : The Court made the following: ORDER - QT IN THE HIGH COI'RT FOR THE STATE OF TELANGANA AT ITYDE,ABAD HON'BLE SRI JUSTICE LAXMI NARAYANA ALISHETTT WRIT PEIITION No.39113 of 2015 DATE:23.L2.2O25 Between: Mohd. Akbar Petitioner AND The State of Telangana, Rep. by its Principal Secretary for Municipal Administration and Urban Development Department, Telangana Secretariat, Hyderabad and others ,.Respondents ORDER: This writ petition is filed seeking following relief: oTo dedare th.e inaction of 2nd and 3rd respondents against tle illegal anstructions rai.sing bg the 4th respondent bg erwroading the public lane about 3 fee* to 5 feets at House prembes beaing No.2O-4-469, Anand. Ba.sthi, Khilutath, Hgderabad. inspite of tlle representation dated 4.8.2015, uthich is registered Grieuane Cell No. 2O15-O8-PV187286 and regi.stered legal rctie dated 8.O9.2015 mode by tte Petitioner, a.s illegal, arbitrary an d for onsequential relief. " '2. No representation on behalf of the petitioner. Learned Standing counsel for respondent Nos.2 and 3 is present.

3. The petitioner is the absolute owner and possessor of the house bearing municipal No.2O- 4-460 / l, Anand Basthi, Khilwath, Hyderabad and resoondent No.4 is the neighbor residing at premises No.20-4-469, abutting to the lane in front of petitioner's propert5r. The respondent No.4 has demolished his cdd structure and undertaken new construction work - \ I i 2 (:-') i11egal15'without obtaining €rny permission and by encroaching the lane up to 3 to 5 feet and also extended shajia on the upper floor for about 3 feet from the basement level. Aggrieved by the illegal r:onstruction of respondent No.4, petitioner submitted a complaint dated 04.O8.2O15 to respondent No.3, to take action against iilegal construction,. but no action has been taken; that petitioner submitted another representation dated 24.O8.2OI1 to respondent No.2, which was registered as grievance No.2O15- O8-PV187286 and the same was forwarded to respondent No.3, to take action against illegal construction by inspecting the premise's. Inspite of representations dated 04.08.2015 and

24.o8.2o15, respondent Nos.2 and 3 did not take action against the ilk:gal construction made by respondent No.4; that petition:r issued legal notice dated o8.09.2o15 to respondent Nos.z and 3 to take action against the respondent No.4 and to remove the illegal construction, but respondent Nos.2 and 3 did not take any action. Aggrieved by the s€une, present writ petition is filed. 4- Tlris court uid"e order dated o2.L2.2o1s, grantgd interim order d:.recting tJre respondent No.2 to depute a responsible officer frrr inspection and take appropriate steps in accordance with lavr to prevent respondent No.4 from carr5ring on further construc:tion and also remove such part of the construction I / @ 3 which is falling on the public lq.ne, after following due process of law; that alleging non-compliance of interim order, petitioner filed contempt uid.e C.C.No.675 of 2016, and the same was closed uide order dated 24.06.2016, with an observation that there was no willful disobedience of order dated O2.12.2Ot5 and the respondent corporation inspected the structure being raised by respondent No.4 and demolished vital parts of the building which was constructed contrary to sanctioned plan and in proof of the same, report as well as photographs were placed on record.

5. Learned Standing counsel for respondent Nos.2 and 3 would submit tJ:at subsequent to filing of the .writ petition, respondent No.4 has submitted an application for regularization of unauthoriz,ed construction in terms of G.O.Ms.No.152 MA dated O2.ll.2OLS uide application No.200O117388, dated

21.02.2016 and the same is pending. He further submit that as and when the BRS application of respondent No.4 is disposed of, the respondent-Corporation will take further course of action basing on the outcome of the BRS application of respondent No.4.

6. This Court has given its earnest consideration to the submissions made by learned counsel for both the parties and peruqd the entire material on record \b I l 4 7 - .[t is relevant to note that the Government of Telangana has formulated Rules for regularization of unauthorized/illegal constructions, which are constructed. in deviation of sanctioned plan or without permission, vide Go.Ms.No.rs2, dated 02.11.12015. As per the said G.o., the application for regalan'ization of unauthorized construction has to be submitted within a period of 60 days from the date of notification of the said Rtrles along with 50% of regularization amount as per Rule 5 or minimum of Rs.10,000/- whichever is less. The competent authority, i.e., Municipal commissioner in case of Municipar corpor.tions, Metropolitan commissioner in case of HMDA, shall, on scrutiny of applications and inspection of sites, either approve or reject the applications and communicaie the same to the applicant(s) concerned as earry as possibre, but not beyond six months from the date of receipt of applications. 8- Tlre Regularization Rules were notilied on o2.11.2015, as per whi<:h, applications for regularization were to be filed within 60 days from the said notified date and the same were supposed to be prr>cessed. within a period of six months from the last date of receipt of applications. 9- The regulariz-atron scheme under Go.Ms.No.rs2, dated o2-ll.2cls was challenged in wp (pIL).No.63 of 2oL6, wherein / / :-..'i; @ 5 interim directions were passed. by a Division Bench of thiS court on 18.10.2016 as under:- "We consider it appropiate, in such ciranmstances, to modifg tte earlier order, and direct tlwt the applicatiors for regularization be processed in accordance with the regularization scleme notified in G.O.Ms.No.152 dated O2.11.2015. In cape *rc GHMC or the otler Municipal Corporations in the StAlz of Telangana, afier considerbry tle applications for regularization, d.ecid.e to reject tle request for regularization it is open to tlrcm to communicate tlrc orders of rejection to tle opplicants concerned, and. thereafier talee actionfor demolition of tle iilegal structures in aeordane withlaw. In slcrch of tlase cases utlwre tle GHMC, or tle otler Municipal Corporations, tentatiuelg d.ecide to regularizc tle illegal structures, such a decision shnll merelg be recorded in tle file, and. slrull neither be giuen effect to nor shall it be communicated to tlrc applicants, pending further ord.ers frcmthis Court."

10. Subsequently, the said WP(PIL) along with a batch of Writ Petitions was disposed of vide order, dated 29.04.2021, with a direction that the interim order dated. 18.10.2016 passed in W.P.(PIL).No.63 of 2016 shall continue to operate tilr a decision is.taken by the supreme court on w.P.(civil) No. L236 of 2o2o.

11. It is appropriate to refer to the recent judgment of the Hon'ble Supreme Court in RaJendrq. Kuttur BarJatga and. olnot/ner Vs. U.P. Aoa,s Eoam Vikas parishad. and, othersi, wherein the Hon'ble supreme court by referring to a catena of decisions, ub., K.Rolmadqs Shenog Vs. Chtef Offlcers, Toutn Munlcttrtal Councit2, Dr. G.jll.KhaJurla and. oth.ers Vs. Delhi Deuelopm.ent Authorttg and, otlr:rss, M.I. Builders 1 2024SCC Online 5C3767 21tsl+'12 scc 506 1rsss1 5 scc 762 3 r1l 6 (Petltloner) Ltd vs. Radheg shgam sahrfi, Esha Dktd. Apartnrcnts co-op rrousing societg Limtted, vs. ilrunlcipat corTtonz:tlon of Mumbais, supertech Ltmlted. vs. Dmerald. court 'outner Resident welfare Associatlon and. other*, Kerala state costal zone Managemert' Autlarttg vs. Maradu Municipalit{, state of Haryana vs. sortpaF, has issued lurther directions in addition to the directions given in Re: Directions in the matter of demolifion of sttttctttres, vide orcer dated 13.11 .2024 in wp(civil).Nos.295 and 32g of 2023, \vP(criminal).No.162 of 2022. The Hon'ble Supreme court tras specifically directed that in the event of any application/appeal/revision being f-rled by the owner or builder against non-issuance of completion certificate or for regularization of unauthorized construction or rectification of deviatiorL, etc., the same shall be disposed of by the authority including the pending appeals/revisions, as concern€,d, expeditiously as possible, in any event not later than 90 days as statutoriy provided. L2. In the instant case, since the grievance of the petitioner remains unredressed .due to the pendency. of the BRS application of respond.ent No.4, in the light of the aforesaid 4 1rsss1 6 s3c 464 ] tzors) gs3c (civit) 89 " (20?2)10:;cc 1 ? 81zozs; 1zozt116 :;cc 822 6 srlc 643 (^j 7 order dated 28.o4.2o2r passed by a Division Bench of this court in wp(pll) No.63 of 2013 and its batch, as well as the directions issued by the Hon'bre supreme court in Rajendra Kumar Barjatga's case (cited supra), the respondent Nos. 2 and 3 (GHMC) are directed to process the application No.20oo117388, dated 2r'2.2016 submitted by respondent No. 4 for regularization of unauthori zed / ifiegar construction, and to pass appropriate orders in accordance with the interim order dated 18.06.2016 passed in wp(pll) No.63 of 2o16, within a period of three months from the date of receipt of a copy of this order. subject to result of the BRS application filed by respondent No.4, the respondent Nos.2 and 3 are directed to take appropriate action to redress the petitioner,s grievance . strictly in accordance with law. 13' subject to above directions and observations, the writ petition is disposed of. There shall be no order as to costs. Miscellaneous petitions pending, if any, shall stand closed. \ To, //TRUE COPYII .PONNA KRISHNA REGISTRAR ECTION OFFICER

1. One CC to SRI SUBHANI S.M, Advocate. 2. Two CCs to Telangana. GP FOR MCPL ADMN-URBAN DEV, Court for the State of

3. One CC to SRt M.ARUN KUMAR, SC.FOR GHMC. tOpUCI D+. Two CD Copies. i t- BSK HIGH COURT DATED:2311212025 I S1;.r { o L) $ 5 \\:B 'tfjlt] i * ORDER WP.No.39113 of 2015 SING OF THE DIS WITHOUT' PETITION d\"6 lbL I 4 :, .:,