WP/27016/2006 of Ramaraja Nagar Residents Welfare Association Vs The Commissioner on 28 December 2006

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Counsel for the petitioner : Shri C.M.R. Velu Dated: 28.12.2006

Per G.S.SINGHVI, CJ

The petitioner association which appears to havebeen formed and got registered in the year 2006 solely forthe purpose of litigating in the matter of the alleged illegalconstructions made by respondent No.3 – M/s MaytasHousing Private Limited in Survey Nos. 73 and 75 ofJeedimetla Village, Qutbullapur Mandal and Municipality,Ranga Reddy District, filed suit for perpetual injunctionsome time after April 2006 along with an application fortemporary injunction, but failed to persuade Junior CivilJudge, Medchal to entertain its prayer for restrainingrespondent No.3 from completing the construction of thebuilding and this is the reason why it has chosen to invokejurisdiction of this Court under Article 226 of theConstitution of India for grant of a declaration that action ofrespondent Nos. 1 and 2 in not containing theunauthorized construction made by respondent Nos. 3 to5 on the land in question is arbitrary, illegal and violativeof municipal laws and also for issue of a mandamus to theofficial respondents to demolish the illegal structuresallegedly raised by respondent No.3.

Shri C.M.R. Velu, learned counsel for the petitionermade strenuous efforts to persuade us to entertain the writpetition by arguing that the issue raised by his client is of vital importance to the people living in Rama Raja Nagar,Jeedimetla Village who have been deprived of basicamenities including the right to use public road on accountof illegal structures being raised by respondent No.3. Hesubmitted that suit filed by the Secretary of the petitionerassociation, which was registered as O.S.No.404 of 2006,has been withdrawn and, therefore, the same cannotoperate as an impediment to the entertaining of writpetition under Article 226 of the Constitution of India. Learned counsel emphasized that respondent No.3 hasbeen making illegal construction for last more than sevenyears and despite repeated representations, the officersof Qutbullapur Municipality and Hyderabad UrbanDevelopment Authority have not taken corrective andremedial measures.

We have given serious thought to the arguments ofthe learned counsel, but have not felt impressed andpersuaded to entertain the writ petition. A perusal of theaffidavit filed by Shri M. Sri Ram, who has describedhimself as President of the petitioner association, showsthat not only the petitioner but respondent Nos.3 to 5 havebeen litigating with the authorities of the municipality andHyderabad Urban Development Authority in the matter ofthe disputed construction. According to Shri M. Sri Ram,after purchasing Acs.8.29 guntas of land in Survey Nos.

73 and 75 situated in Jeedimetla Village, QutbullapurMandal and Municipality, respondent Nos. 4 and 5 haveraised construction through respondent No.3 in violationof the sanctioned building plan and for this purpose, theyfiled O.S.No.121 of 2005 in the Court of Junior Civil Judge,Medchal and respondent No.3 filed O.S.No.439 of 2005in the Court of Principal Senior Civil Judge, Ranga ReddyDistrict. In both the cases, the plaintiffs succeeded inobtaining interim injunctions and continued unauthorisedconstruction. In paragraph 10, the deponent has averredthat the fire and emergency service department issuednotice dated 19.04.2006 to respondent No.3, but nofurther action has been taken. In paragraph 11, he hasdetailed the violation of the sanctioned plan and averredthat the Court may direct the official respondents todemolish the unauthorised constructions.

Conclusion

In our opinion, the writ petition is liable to bedismissed for more than one grounds, which areenumerated hereunder:

(i) the averments contained in paragraph 12 of theaffidavit of Shri M. Sri Ram nowhere shows thatO.S.No.404 of 2006 instituted by the Secretary ofthe petitioner association has been withdrawn. However, even if we were to accept and rely onthe oral statement made by the learned counselthat the suit has been withdrawn, we do not findaffidavit of Shri M. Sri Ram nowhere shows thatO.S.No.404 of 2006 instituted by the Secretary ofthe petitioner association has been withdrawn. However, even if we were to accept and rely onthe oral statement made by the learned counselthat the suit has been withdrawn, we do not find any valid ground or justification to entertain thewrit petition and adjudicate contentious issues offacts which can appropriately be adjudicated by acivil Court on the basis of evidence produced bythe parties;

(ii) as per the petitioner’s own showing, the disputedconstruction is going on for last several years. Ifthe averments contained in the affidavit of Shri M.Sri Ram are read as a whole, it becomes clearthat the construction activity undertaken byrespondent No.3 is going on for last almostfifteen years. The averments contained inparagraph 11 (j) of the writ petition shows that theflats constructed by respondent No.3 areoccupied by large number of persons. If that wastrue, it is not possible to fathom any tangiblereason why the members of the petitionerassociation kept quiet and woke up from slumberafter long lapse of time;construction is going on for last several years. Ifthe averments contained in the affidavit of Shri M.Sri Ram are read as a whole, it becomes clearthat the construction activity undertaken byrespondent No.3 is going on for last almostfifteen years. The averments contained inparagraph 11 (j) of the writ petition shows that theflats constructed by respondent No.3 areoccupied by large number of persons. If that wastrue, it is not possible to fathom any tangiblereason why the members of the petitionerassociation kept quiet and woke up from slumberafter long lapse of time;

(iii) if an order is passed by the Court at this stagefor demolition of the alleged illegal constructionmade by respondent No.3, the owners/occupantsof the flats are bound to be adversely affectedand as none of them has been impleaded asparty to the writ petition, there is no justification forissue of a direction to respondent Nos. 1 and 2 tofor demolition of the alleged illegal constructionmade by respondent No.3, the owners/occupantsof the flats are bound to be adversely affectedand as none of them has been impleaded asparty to the writ petition, there is no justification forissue of a direction to respondent Nos. 1 and 2 to demolish the so-called illegal construction.

The writ petition is dismissed in the mannerindicated above.

As a sequel to dismissal of the writ petition, W.P.M.P.Nos. 34710 and 34711 of 2006 filed by thepetitioner are dismissed.

G.S.SINGHVI, CJ

C.V. NAGARJUNA REDDY, J

28.12.2006ksld