Saifuddin Lakhani v. 1. The state of Telengana

Counsel for thr: Petitioner: SRI G.ARUN KUMAR Counsel for the Respondent No.1: Gp FOR MCPL ADMN-URBAN DEV Counsel for the IRespondent Nos.2 TO 4: SRI MIDDE ARUN F:UM,{R, SC FOR GHMC Counsel for the Respondent No.5: SRI ASHFAe AHMED The Court made th,: following: ORDER t HONOURABLE SRI JUSTICE B. VIJAYSEN REDDY WRIT PETITION No.3M20 OF 2015 ORDER:(ORAL) This writ petition is filed by the petitioner seeking to declare the inaction of respondents No.2 to 4 in taking action in respect of the unauthorized and illegal construction of lift and pent house being undertaken by respondent No.5 in the premises bearing H.No.5-8- 5O5lA/4, Mega Residency, situated at Chirag Ali Lane, Hyderabad, as being illegal, arbitrary and unconstitutional.

2. It is submitted that the petitioner purchased two (2) flats in the 2"d floor, total admeasuring 1800 square feet, in premises bearing H.No.5-8-505/N4, Mega Residency, situated at Chirag Ali Lane, Hyderabad under registered sale deed and since then the petitioner along with his family had been residing therein. The building was constructed by one Mr. Sarwar Afzaly in 1996. The foundation laid down by the builder bears structural strength for construction of ground + 2 floors and as per the sanctioned plan there was no provision for construction of lift. Respondent No.5 is having two (2) flats in the ground floor purchased in

1996. The building comprises of ground + 2 upper floors whereas third parlies are in occupa{on of the first floor. 2

3. It is subrritted that respondent No.5 withoul intimar ing the flat ow,ers in r.h,: 'and 2nd floors and without any valid pt:mi.;sion started digging the pror rid on the south-western side of the flats or' t re petitioner with an i,ttrrticn to construct lift exclusively Ibr rirn as he has unauthorizerd l) and illegally constructed pent horrse on rhe terace. In fact, the ler';rce rights are vested with ail the flat c wners with undivided sharc o'er the land. Respondent No.5 doel; r'rc,t have any exclusive rigrt tr, construct pent house over the terract:. if respondent No.5 insralls li i leading to terrace, it will read to ob:;rruction of ventilation tc' tl t: petitioner's flat and it will cause .uis:rnce to the petitioner. In [ir,: , the lift is facing the master bedroom ol- the petitioner's flat. It is subrnited that the structural engineer a.d tire a rchitectural engineer ha.,re ,;r_t rqested respondent No.5 as well as the lretttioner that if the gro,nd is ,Iuc tr installation of lift, it would affect the errt re building structures. [n'rr: c cliately, the petitioner iodged cornprainr ber.ore the concemed Polit.t: t,ut no action has been taken, as such, tht: petitioner was constrained r.o appr.oach this Court. 4(a). In the c,r:rnter affrdavit filed by respondents No.f 1,1 4, it is stated that on receif,t e l the complaint from the petitioner, the .espondent ,,, 3 authorities inspected the site and observed that the building was constructed twenty five (25) years ago and it comprises of cellar, ground + 3 upper floors and pent house on 4'h floor. Respondent No'5 and others were proceeding with the erection of lift by digging the earth below 4 feet and erected iron gridders for installation of the lift. The respondent authorities stopped the construction work and disbursed the labourers working in the site. The respondent No.5 submitted representation dated

27.07.2016 before the respondent authorities seeking perrnission for installation of tift and the same rvas rejected by letter dated 28.08.2016 issued by the respondent authorities wherein respondent No'5 was directed to stop the construction for installation of lift. Further, respondentNo.5wasrequestedtosubmitbuildingapplicationthrough online for process for constructiotVerection of lift as required under sections 428 and433 of the Greater Hyderabad Municipal corporation Act 1955 lfor short'Act'). 4(b). Aggrieved thereby, respondent No'5 filed O'S' No'2072 of 2O16 before the leamed IV Junior Civil Judge, City Civil Court' Hyderabad (for short 'trial Court) and obtained temporary injunction order in I.A. No.329 of 2016. Meanwhile, the order dated 16'09'2016 in { l 4 W.P. No.-r0.-110 of 2016 (the instant writ petition) war passed by this Courl dire:t rql :he respondent authorities to stop the con.;truction for installation o1. lift being undeftaken by respondent No.5. Thereafter, on 19.09.10 (). rhe respondent authorities inspectetl tht. sit: and flound that responrlenr No.5 has already erected the lift in full shape; panchanama u.,rt; conducted on the same day and letrer datec 1g.09.2016 was issued to re;londent No.5 directing him to not to proce,:d with any type of constnrc-,on. Further, the respondent authorities add.essed letter dated 18. I tl.-10 i ( to the concemed police requesting thr:m to take necessary s;tt.fr; :)r, way of keeping vigilant watch ,)vr)r any fresh constructiori irl rt-- premises bearing No.5_g-505/A/4, Ciriral; Ali Lane, Hyderabad ll irr 'urther stated that the respondent auth.rities wi[ take necessary st3f.,s -(.,,arding the erection of lift based on the ,trcle: passed by the trial Court

5. IIeard lvar. G. Arun Kumar, learned counsei for the petitioner; Mr. Ashfaq .\lrrLe rl. leamed counsel for respondent No.5; ancl ,,dr. Midde Arun Kumar, l:r-ned Standing Cowrsel for GHlvIC, app,:aring for respondents l\{o.,1 it 4, and perused the material on record. ./. 5 6 Leamed oounsel for the petitioner submitted that the pent house illegally constructed by respondent No'5 and admittedly no peffnrsslon was granted to respondent No.5 for erection of lift' Thus,respondentsNo.2to4maybedirectedtoremovethetrrrauthorized lift from the subject Premises.

7. Learned counsel for respondent No'5 placed on record the additional material papers which have been filed on 24'03'2025 and submitted that the pent house which was unauthorizedly constructed was later regularized vide proceedings dated 2l'04'1997' The lift was installed in2016 after duly submitting the application dated2T'05'2016 before the respondent authorities seeking permission for sanction for instatlation of lift. As the respondent authorities did not respond for a period of one (1) month, the permission for erection of lift is deemed to have been granted, as such, respondent No'5 issued notice under Section 440 of the Act dated 01.07.2016 to respondents No.2 to 4 intimating them that he is proceeding with the installation of lift' It is further submitted that at the time when building application dated 27'05'2016 was submitted by respondent No'5, there was no online process' Thus, physical application was submit$d;and permission is deemed to I i i I I I 6 have been granled As the said application was not rejer:ted for a period of one (1) monll, notice under Section 440 of the Act clatecl Ol.O7.2016 was duly issuec to respondents No.2 to 4. Learned cou nsel further submitted that lift is meant for the benefit of all the flat o.,vner s.

8. Learne,d counsel for respondent No.5 submitted that th,: flats in the entire buildirp: e r cepting two (2) flats which are owned try tte petitioner, belong to resporrrlent No.5 and his family members and tha respondent No.5 and hi:; ltrnily members would never object the pet:tioner from using the lift.

9. Accorciing to the leamed counsel for the petitioner, the pent house was unauthr:r izr:r I ly constructed but as per the regula rizati,tn p:oceedings dated 21.04. q,l7, the same was regularized. The record .eveals that respondent No.5 has applied for permission for erectio, of lift and as there was no reril()nse from the respondent authorities for a pe::iod of one (1) month, norio( under Section 440 of the Act was issue,l intimating the respondent authorities that respondent No.5 was plocer.:ding with installation r:f li R as per the deemed permission. 7

10. Leamed Standing Counsel for GHMC submitted that the suit in O.S. No.2072 of 2016 is pending before the trial Court and appropriate action will be taken in accordance with law. 1 1. Taking note of the fact that the lift was already erected based on the deemed permission and that respondent No.5 does not have any objection if the lift is used by the petitioner, at this juncture, this Court is not inclined to entertain the writ petition.

12. As it is stated that the injunction order has been passed by the trial Court in I.A. No.329 of 2016 in O.S. No.2072 of 2016, this writ petition is disposed of directing respondents No.2 to 4 to take appropriate action subject to the outcome of the said suit. The trial Court is directed to decide the vatidity of the deemed permission obtained by respondent No.5 by framing necessary issue in the suit. There shall be no order as to As a sequel thereto, miscellaneous applications, if any, pending in the writ petition stand closed SD/.S . MALLIKARJ UNA RAO IS ANT RE GISTRAR //TRUE COPY// To

1. of Telangana. 2 The Commissioner' Greater Hyderabad Mun The PrinciPaI Secretary MuniciPal Administration an Secretariat, Hyd erabad, State ComP lex, Tank Bund, Hvd erabad The DePutY Commissioner, No. 8, HYde rabad J. icipal CorPoration, MuniciPal Greate r Hyderabad Municipal Corporation' Circle ECTION OFFICER rban DeveloPment J The As,st (lity planner. Greater Hyderabad lVlunicip,l Cc,rpor ation, Circle No. 8, Hyd,-,r,rba:. 9n" 9: r S Rt G.ARUN KUN/AR. Advocare tOpUCt 9n" 9,: r S Rl ASHFAo nsvro, novoiil"ei-cipirii one c{l ,c s Rr rr/rDDE ARrrN K.[MAC, Sc*ib"R 6ii,r,,,rc Lor ucr Two c{rs r, -'ip FoR vLvI I rrvrr felang_rra rrt Hyderabad. tOufl Two CD rl rI i.:s ADA/N-Un'A-N'O"EvlHilirr-,i"r,irJi tn" state of ^/cpr 4 6 7 B, o PSK. GJP HIGH COURT DATED:0910612025 ORDER WP.No.30420 of 2016 I , 'i:ffi i L,ii :\\ .i li :t) DISPOSING OF THE WRIT PETITION WITHOUT'COSTS \5 -l E-E 1