WP/26774/2006 of M/s. BNR Constructions, Vs The Municipal Corporation of Hyderabad, on 22 December 2006

Conclusion

-ORDER:

Heard Sri Narasimha Rao, the Counsel representingthe petitioner and Smt.Jyoti Kiran, the learned standingCounsel who had taken notice on behalf of R.1 and R.2.

2. The Writ Petition is filed for a Writ of Mandamusdeclaring the notice in Lr.No.UC/621/1091/1/7/W7/C5/TPS/MCH/2006, dt.15-12-2006, issued by the 2[nd] respondent as illegal,arbitrary and contrary to law and consequently direct therespondents and their employees not to interfere with theconstruction of the building in premises No.7-1-621/109,S.R.Nagar, Hyderabad as long as the construction is inaccordance with the approved plan and pass such othersuitable orders.

3. The said notice dt.15-12-2006 reads as hereunder:- MUNICIPAL CORPORATION OF HYDERABAD

Office of the assistant City Planner,Town Planning Section, Circle V,Khairatabad, Hyderabad Lr.No.UC/621/1091/1/7/W7/C5/TPS/MCH/2006

Dt.15-12-2006

ToSri Veeraiah,

Sir,

Sub:- MCH – T.P.Section – Circle No.5 –

Unauthoriseddigging for cellar floor at premises No.7-1- 621/109, SR Nagar, Hyderabad– Closing of Cellar – Reminder –Regarding.digging for cellar floor at premises No.7-1- 621/109, SR Nagar, Hyderabad– Closing of Cellar – Reminder –Regarding.

Ref:- 1. Permit No.48/87, dt. 31-12-2005 in file No.374/CSC/TP5/2005.

2. This Office

Lr.No.UC/621/109/1/7/27/C5/2006

3. Your representation dt.16-9-2006

-: o0o :-

In the reference 1[st] cited, you have obtainedpermission for construction of Ground+3 upper floors. You have started the construction without issuing noticeU/s.440 of HMC Act and started excavating the groundwith an intention to construct a Cellar floor for which thisoffice has informed you vide reference 2[nd] cited to stopthe unauthorized excavation of Cellar. In response tothis office instructions, you have submitted theexplanation vide reference 3[rd] cited, the same has beenexamined and found that are no merits. But again youare excavating the earth with an intention to lay theCellar unauthorizedly.

Therefore, you are hereby once again directedto stop further excavation and fill the same immediately,failing which further action will be initiated as per theprovisions of the Act, and you will be held responsible ifany damages occurred to neighbours and labour.

Yours faithfully,Sd/-

Assistant City Planner,Circle No.5, MCH.

4. It is stated that the petitioner is the absolute ownerand possessor of the property bearing No.7-1-621/109admeasuring 482.77 sq.yds., situated at S.R.Nagar,Hyderabad. It is also stated that the petitioner purchasedthe said property through registered sale deed dt.4-11-1999 and thereafter the respondent Corporation hadgranted permission vide permit No.48/87 in fileNo.0374/CSC/TP-5/2005 dt.31-12-2005 and the petitionerhad started excavation work basing on the permissiongranted by the respondent Corporation. While matterstood thus, respondent No.2 issued notice on 5-9-2006with grave allegations. The petitioner submitted a reply on16-9-2006 through his explanation. Again the respondentCorporation issued notice dt.15-12-2006 withoutconsidering the representation submitted by thepetitioner. The respondents and their employees areinterfering with the excavation work of the area. The maingrievance of the petitioner is that at this stage, the 2[nd]respondent cannot arrive at a conclusion that theexcavation is unauthorized for the purpose of Cellar. TheCounsel also would maintain that if there is any deviation

of the construction from the approved plan, at theappropriate time the procedure as contemplated by theHyderabad Municipal Corporation Act, 1955, may befollowed.

5. In view of the facts and circumstances explained indetail, this Court is of the considered opinion that theissuance of the impugned order at this stage cannot besustained and the same is hereby set aside. But howeverthe respondents are at liberty to initiate action inaccordance with law in the event of the petitionerproceeding with the further construction in deviation of theapproved plan. Subject to the liberty specified supra, theWrit Petition is accordingly allowed to the extent indicatedabove. No order as to costs.

________________

Justice P.S.Narayana

22[nd] December, 2006

Note: Operative portion of the order by wire at party’s costs.

(B/o.smr)