WP/34691/2011 of Smt. S. Vijitha Reddy Vs The Greater Hyderabad Municipal Corporation on 30 December 2011

O R D E R:

1. This writ petition is filed to issue writ of Mandamusdeclaring the action of the respondents in issuing Noticevide proc. No.1861/TPS/C-18/NZ/GHMC/B1/2008, dated24.12.2011 contrary to the occupancy certificate dated20.12.2010 and against the orders of this Court n WPNo.6226 of 2011, dated 23.8.2011, as illegal and arbitraryand consequently set aside the same.

2. The averments, in brief, stated in the affidavit filed insupport of the Writ Petition may be stated as follows:Petitioner is absolute owner and possession of SSREnclave situated in premises No.12-13-705/9/A situated atTarnaka, Lalaguda, Secunderabad, having constructedthe building consisting of stilt for parking + 4 upper floorsas per the approved layout and plan. The respondentsalso issued occupancy certificate vide proc.No.1861/TPS/NZ/GHMC/B1/2008, dated 20.12.2010stating that they inspected the building and it conforms inall respects to the requirements of building regulations inrespect of structural safety, hygiene and sanitaryconditions and is fit for occupation, and accordingly,released 10% mortgaged built up area. The respondentsalso issued proceedings dated 20.12.2010 requesting theSub Registrar, Maredpally to delete entry from prohibitoryproperty watch register to enable to return the mortgageportion.

Earlier, when the respondents issued a notice dated14.2.2011 demanding to stop construction and producesanctioned plan, if any, petitioner filed Writ PetitionNo.6226 of 2011 wherein this Court granted interimdirection on 10.3.2011. However, as the respondentsdemolished compound wall on 15.3.2011, Contempt Case No.366 of 2011 was filed which was closed directing therespondents to verify the area where the petitionerconstructed the compound wall with reference to theapproved layout, and also disposed of the Writ Petition tofollow the direction in the Contempt Case. Therespondents, without giving any opportunity as directed bythis court, issued the impugned proceedings stating thatthe authorities inspected the site and verified with thesanctioned plan as per the direction of this Court in theabove Writ Petition, and it is observed that the petitionerencroached to a depth of 10” towards northern side and 5’towards western side i.e. petitioner constructed thebuilding in more than the permitted land area, andaccordingly, directing him to remove the constructionswithin seven days from the date of receipt of the saidnotice. Challenging the same, the present Writ Petition isfiled.

3. Learned counsel for the petitioner contended thatthe respondents authorities issued occupancy certificatedated 20.12.2010 stating that the building conforms in allrespects to the requirements of building regulations; that,without there being any notice, the respondents are tryingto demolish the structures in the petitioner’s site; that therespondents have not followed the directions issued bythis Court in its order dated 23.8.2011 in Writ PetitionNo.6226 of 2011; that, the impugned notice does notindicate any provision of law and the details of inspectionhave not been noted in the notice, and hence, he prays toset aside the impugned notice.

4. On the other hand, the learned standing counselappearing for the respondents contended that theoccupancy certificate was issued long prior to thedirections given by this Court in Writ Petition No.6226 of2011; that in pursuance of the order of this Court in theearlier Writ Petition, the respondents verified the site in

question along with approved lay out and sanctioned planand found that there is encroachment to a depth of 10’towards northern side and 5’ towards western side; thatthe petitioner constructed the building contrary to thesanctioned plan and in more than the permitted land area;that, no notice is required as per the directions of thisCourt and also in view of the fact that the action is initiatedunder Section 405 of the Greater Hyderabad MunicipalCorporation Act, 1955 (for short, ‘the Act’), and hence, sheprays to dismiss the Writ Petition.

5. As seen from the impugned order, a direction wasgiven by this court in Common Order in Writ Petition Nos.6226 of 2011 and 15959 of 2011, wherein it is stated thatthe petitioner encroached certain area by raisingcompound wall, and that neighbourers of that areacomplained to the municipal authorities that the petitionerconstructed compound wall unauthorisedly. The casewas closed directing the respondents to verify the areawhere the petitioner constructed the compound wall withreference to the approved layout, and if it emerges thatthe petitioner did not encroach any lane shown in thelayout, it shall be open to him to construct the compoundwall at the place where it existed, and if it emerges that thearea concerned is part of any lane, he shall not be entitledto do so.

6. The grievance of the petitioner is that this Courtdirected municipal authorities to verify the construction ofthe compound wall with reference to layout. The layout ofthe site in question is not in dispute. The only aspect indispute is that the construction is contrary to the approvedplan or not. Whether the petitioner constructed thecompound wall in accordance with the sanctioned plan ornot, is sufficient for adjudication of the issue, but not withreference to lay out because there is no dispute withregard to the size of the plot with regard to dimensions.

Therefore, the contention that the respondents have actedcontrary to the direction given by this court, cannot beaccepted.

7. No doubt, in the impugned notice, details of date ofinspection and by whom it was made and whether anynotice is given to any person, etc. are not furnished. But,the impugned notice would go to show that the petitionerencroached to a depth of 10’ towards northern side and 5’depth towards western side and that he constructed thebuilding in more than the permitted land area. Therecannot be any dispute that the petitioner has to constructthe building in accordance with the sanctioned plan. If hehas not constructed, it is liable for demolition. It must beshown by the petitioner by producing relevant documentsand other material to show that he has not encroached toa depth of 10’ towards northern side and 5’ depth towardswestern side. He did not produce any material to showthat his construction is completely in accordance withsanctioned plan approved by the competent authority andalso within the site he is having title. The impugned orderwould clearly indicate that the petitioner was directed tovoluntarily remove the structures constructed on thegovernment land within 7 days on receipt of the notice,failing which the corporation would remove the sameunder Section 405 of the Act. If the construction is withinthe site he possesses title, then a notice under Section406 of the Act is required to be given. In case of anencroachment, notice under Section 405 of the Act issufficient, which does not contemplate calling for anyexplanation. Therefore, though the provision of law is notspecifically mentioned on the top of the notice, as seenfrom the impugned order, it is purported to have beenissued under the directions of this Court and it must beunderstood that it is a notice issued under Section 405 ofthe Act.

8. Simply because, on earlier occasion, the petitionerwas granted occupancy certificate, that does not conferany right to say that he constructed the building inaccordance with the sanctioned plan. If any violation isfound on a subsequent date, the authority can initiateaction in accordance with law. The oral assertion of thepetitioner that he has not encroached into the governmentland, cannot be accepted because there is no proof, atthis stage, to show that he made constructions within thearea owned by him. Therefore, the respondents are atliberty to demolish such of constructions made contrary tothe sanctioned plan, as mentioned in the impugnednotice. The Writ Petition is devoid of merit and is liable tobe dismissed.

9. The Writ Petition is, accordingly, dismissed at thestage of admission leaving open the remedies available tothe petitioner under law. No costs.

30.12.2011DRK

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(K.C.BHANU, J.)

THE HON'BLE SRI JUSTICE K.C.BHANU

WRIT PETITION NO. 34691 OF 2011

Date: 30.12.2011