Rahim Bin Hussain v. 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 pleased to lssue appropriate writ' order or direction more particularly one in the natureofWritofMandamusdeclaringtheactioninactionoftheRespondents No.2 to 6 without issuing any notice for demolition as per Lr'No' 791/RT|/ACP/C5/SZ/GHMC/20 16 dl' 16'12'2016 of the 7th respondent apartment situated in H.No. 14-2-193,Gayan agh Colony' Shahinyathguni' Hyderabad was constructed without any building permission as arbitrary, illegal and violative Article 1g,21 and 300-A of the constitution of lndia in the interest rlf justice. NO 1 NO 1 petition under liection 151 CPC praying that in the circurtstances stated in the affidavit filed in sr:pport of the petition, the High Court may be pleased direct the respondents No.2 to 4 herein to take immediate steps on the illegal construction of 7th respondent apartment situated in H.No. 14-2-193, Cayan Bagh colony, shahinyathgunj, Hyderabad pending disposal of the above writ petition' Counsel for the Petitioner: SRI S.SRINIVAS, rep., SRIV'K'SHIVA SHANKAR counsel for the Respondent No.1: GP FOR MCPL ADMN-URBAN DEV counsel for Respondents No.2to4 ' Snl ru.aRUN KUMAR, SC FOR GHMC counsel for Respondents No.S : SRI T.SUDHAKAR REDDY, SC FOR WWD counsel for Respondent No.6 : 3t,ftHT33Jo=""r""' Counsel for ResPondents No.7 : The Court made the following: ORDER 1 THE HON'BLE SRI JUSTICE LAXMI NARAYANA ALISHETTY WRIT No.36597 of 2OL7 ORDER: This writ petition is filed to declare the inaction of respondent Nos.2 to 6 in not taking any action for demolition of apartment bearing H.No. 14-2-193, situated at Gayan Bagh colony, Shahinyathgunj, pursuant to letter dated L6-12-2O16 as illegal, arbitrary and in violation of Articles 19, 2l and 300-A of Constitution of India.

2. Heard Sri S.Srinivas, learned counsel representing Sri V.K.Shiva Shankar, learned. Counsel for the petitioner on record and Sri M.Arun Kumar, learned Standing Counsel for GHMC.

3. Learned counsel for the petitioner would submit that petitioner is the absolute owner and. possessor of tand admeasuring 14,000 Sq.yrds covered by houses bearing Nos.14-2-193/A & 193, l4-2- tg3 I 4, l4-2-lg3 I 6, 14-2-332 I 14, L4-2-332, 14-2-332 I A, l4-2- 332lElA, l4-2-1g2, t4-2-191 & 192, situated at Gyanbagh colony, Ghode-ki-Kabar, Hyderabad. He further submitted that petitioner filed a suit uid.e o.S.No.214 of 2oL6 on the file of xl-Additional Chief Judge, City Civil Court, Hyderabad, for declaration, title, recovery of possession and permanent injunction. While the said suit was pending, respondent No.7 constructed an apartment complex and as 6-4 !.- 2 per the information obtained by the petitioner from respondent No.4 on' 16. 12.2o16, no permission \,rras accorded to respondent No.7 for construction of apartment, therefore, petitioner has complained to respondent Nos.2 to 4 to take action against illegal construction made by respondent No.7, hor,vever, respondent Nos.2 to 4 are not taking any action for demolition of building. Aggrieved by the same, present writ petition is filed.

4. Learned standing counser for respondent Nos.2 to 4 by referring to the counter filed by respondent Nos.2 to 4 would submit that one Uma Devi vyas has submitted an application for construction in premises No.14-2-191, rg2, 193 & (part), rg3l2 & 193/6 and respondents' corporation has granted permission uid.e permit No.12 /3, dated 1 1.09.201o, for construction of Stilt + 2 upper floors for residential purpose. He further submitted ttrat one Nanda Kishore Vyas has submitted an application for construction in respect of premises No. 14_2_ 191, 19 1 , 193 and t93 / 1 (part) and respondents' corporation has accorded permission uid.e permit No.l2/2, dated 11.0g.2010, for construction of stilt | 2 upper floors for residential purpose. He further submitted that one prem Kumar Vyas has submitted an apprication for construction in respect of premises No.14-2-191, rg2, 193 & (part) Lg2/12 & rg2/rg and respondents' corporation has accorded permission uide permit I i t 3 No.12/1, dated 11.08.2010, for constmction of Stilt + 2 upper floors for residential purpose. However, the said owners of above properties raised structures in deviation of sanction plans and raised a single building, therefore, respondents' corporation has issued notice dated i9.03.2012, under Section 452(ll & 461(1) of HMC Act, 1955; that the said owners filed different suits uide O.S.Nos.2O19, 2023 and 2O2l of 2013 and obtained status quo orders on 01.03.2013, and completed construction and the said suits are disposed of on

12.12.2013, 10.09.2014 and 21.O3.2O14 respectively; that the said owners suppressing the above facts, again approached the trial Court by filing another sutt uide O.S.No.l2B7 of 2014 and obtained status quo Order on 21.07 .2014. He further submitted that individual flat owners of respondent No.7 have individually applied for regularrzatron of their respective flats in terms of G.O.Ms.No.152 of 2O15, dated O2.ll.2ol5, for regularization of their flats in the month of January 2016.

5. Learned Standing Counsel for respondent Nos.2 to 4 would further submit that applications filed by the individual owners of respondent No.7 are pending consideration and once the BRS applications are disposed of, the respondents'Corporation will take further action basing on the outcome of the BRS applications of the owners of respondent No.7. 4

6. This cou::t has given its earnest consideration to the submissions milde by learned counsel for both the parties and perused the entire material on recorcl.

7. It is relevarnt to note that the Government of ,lelangana formulated Rules for reguiarization of unaul.ho rized,lillegal constructions, 'ur,'hich are constructed in deviation of sanctioned plan or without permission, vide Go.Ms.No. 152, date d 02.11.2o15. As per the said G.O., the application for regularization of unauthorized construction has to be submitted within a period of 60 days from the date of notification of the said Rules along with SOol) of regular ization amount as per Rule 5 or minimum of Rs.1o,ooo/- whichever is less. The competent authority, i.e., Municipar commissioner in case of Municipal corporations, Metropoiitan commissioner in case of HMDA, shall, on scrutiny of applications and inspection of sites, either approve or reject the applications and communicate the sarne to the applicant(s) concerned as earry as possible, but not beyond six months from the date of receipt of applications.

8. The Regularization Rules were notified on o2.r1.2o15, as per which, applications for regularization were to be filec within 60 days from the said rrotified date and the s€une were supposed to be processed within a period of six months from the last date of receipt 5 of applications

9. The regolartzation scheme under GO.Ms.No.l52, dated O2.LI.2O 15 was challenged in WP (PIL).No.63 of 2Ot6, wherein interim directions were passed by a Division Bench of this Court on

18.10.2016 as under:- "We consider it appropriate, in such circumstences, to modifg the earlier order, and direct thqt the applications for regulari-z,ation be processed in accordance wittt tlrc regularization scheme notified in G.O.Ms.No.152 dated 02.11.2015. In case the GHMC or the other Municipal Corporations in the Stote of Telangancl, afier considering the applications for regularization, decide to reject tlle request for regularization, tt is open io them to commurlicate the orders of rejection to the applicants concetrLed, and thereafier take action for demolition of the iltegat structures in accord.ance with law. In such of those cases where the GHMC, or the oth.er Municipal Corporations, tentatiuely decide to regulariz,e tlrc illegal structures, such q. decision sLrull merelg be recorded in th.e -ft\e, and shall neither be giuen effect to nor shall it be commurlicated to the applicants, pending further orders from this Court."

10. \-subsequently, the said WP(PIL) along with a batch of Writ L J' \ Petitions was disposed of vide order, dated 28.O4.2O2L, with a direction that the interim order dated 18.10.2O16 passed in 6 1i W.P.(PIL).No.63 of 2O16 shall continue to operate r-ill a decision is taken by the Sunreme court on w.p.(civil) No. i 236 cf 2o2o. 1 1. It is appropriate to refer to the recent judgment of the Hon'ble Supreme court in Ra.jendra Kumar Barjatga and. another vs. u.p. Aaas Eaqm Viko.s Parisho.d qnd othersr, ,,r,herein the Hon'ble Supreme court- by referring to a catena of decisions, ub-, K.Rannadas shenog vs. chief ofJicers, Town Municipal councip, Dr. G.N.Khajuriq. qnd others vs. Delhi Deuelopment Authoritg q.nd other*, M.r. Builders (petitioner) Ltd vs. Radheg shgann sahua, Esha Ekta Aparttnents co-op Housing societg Limited. vs. Municipal corporation of Mumbais, supertech Limited. vs. Emerald coutt owner Resident werfare .4ssoctation and. other*, Kerq.lq state costal zone Management .authoritg vs. Marqdu Municipalitg/, state of Haryd.rtd. vs. satpal8, has issued further directions in addition to the directions given in Re.. Directions in the mqtter of demolition of strttctures, vide order dated 13.11 .2024 in wp(civil).Nos.295 and 328 of 2023., wP(criminal).No.162 of 2022. The Hon'ble supre.me court has L 2024 SCC Online SC 3767 2 ltst+1 2 scc so6 3 qtsssl 5 scc 762 o ltsss; 6 scc 464 s lzor:; 3 SCC (civir) Be b (2021) 10 scc 1 ' (zozt) 16 scc B2z 8 lzoz:; 6 scc 643 7 specifically directed that the event of application/appeal/revision being filed by the owner or builder against non-issuance of completion certificate or for regtiarization of unauthorized construction or rectification of deviation, etc., the same shail be disposed of by the authority concerned, including the t pending appeals/revisions, as expeditiously as possible, in any event g not later than 9O days as statutorily provided

12. In the instant case, since the grievance of the petitioner remains unredressed due to the pendency of the BRS applications, in the light of the aforesaid order dated 28.O4.2O2L passed by a Division Bench of this Court in WP(PIL) No.63 of 2O13 and its batch, as well as the directions issued by the Hon'ble Supreme Court in Rajendra Kumar Barjatga's case (cited supra), the respondents are directed to process the applications submitted by the individual plot owners of respondent No.7 for regularization of unauthorized/illegal construction, and pass appropriate orders in accordance with the interim order dated 18.06.2016 passed in WP(PIL) No.63 of 2Ot6, within a period of three months from the date of receipt of a copy of this order. Subject to result of the BRS applications filed by the owners of respondent No.7 complex, the 2"d respondent is directed to take appropriate action in respect of subject property strictly in accordance with law. 13' Subject to above directions and observations. rhe inrit petition is disposed of. There shall be no order as to costs. 8 r"') Miscellaneous petitions pending, if any, sha-il srtand closed. SD/-S MALLIKARJUNA RAO TANT REGI //TRUE COPY/ To, 1 The Principal Secretary, (Municipal Administration), S State. Hyderabad CTION OFFICER riat, Telangana Z The Commissioner, Greater Hyderabad fVlunicipal Corporation, Hyderabad. 3. The Zonal Commissioner, Cirlce-V & Vlll, Greater Hyderacad Municipal Corporation, Sardar tt/ahal, Charminar, Hyderabad.

4. The Assistant City Planner, Cirlce-V, South Zone, Greater Hyderabad Municipal Corporation, Hyderabad.

5. The General lt/anager, Water Works Department, Shahniyath Gunj, Hyderabad.

6. The Assistant Executive Engineer, TSSPDCL, Godike Kabar, Shahniyath Gunj, Hyderabad,

7. One CC to SRI V.K.SHIVA SHANKAR, Advocate. [OPUCI B. Two CCs to GP for tt/unicipalAdministration and Urb?n Development, High Court for the State of Telangana at Hyderabad. [OUT] 9. One CC to SRI M.ARUN KUMAR, SC FOR GHMC. [OPUCI 10. One CC to SRI T.SUDHAKAR REDDY, SC for Water Works Department. loPUCl

11.One CC to SRI R.VINOD REDDY, SC FOR TGSPDCL. [OPUC]

12.Two CD Copies BSK BS $> HIGH COURT DATED:09/1 012025 ORDER WP.No.36597 of 2017 'rl1 E $I t.4 t I u 21 ilr/I w rcHEo ,t DISPOSING OF THE WRIT PETITION WITHOUT COSTS \