HONOURABLE SRI JUSTICE A. RAMALINGESWARA RAO WRIT PETITION No. 7317 OF 2007 DATED 17TH SEPTEMBER, 2014.
BETWEEN Abdul Samad Khan ….Petitioner and Municipal Corporation of Hyderabad, Rep. by its Commissioner, Hyderabad and ors ….Respondents.
HONOURABLE SRI JUSTICE A. RAMALINGESWARA RAO WRIT PETITION No. 7317 OF 2007
ORDER:
This Writ Petition was filed challenging inaction of respondents 1 and 2 in taking steps on the representation submitted by the petitioner on 20.03.2007 and consequently directing respondents 1 and 3 to forthwith prevent the unofficial respondents 5 to 8 from utilizing the cellar area meant for parking as godown in the premises No.5-8-112, 21st Century Commercial Complex, Nampally, Bazarghat Road, Hyderabad.
The petitioner submitted a representation to the first respondent on 20.03.2007 stating that some persons (respondents 5 to 8 herein) who are carrying on business under the name and style of ‘Furniture Makers’ by encroaching the space meant for parking are utilizing as godown and dumping material therein in violation of the bye laws of the Municipal Corporation of Hyderabad.
The petitioner states that himself and his brother by name Abdul Majeed Khan are the owners of the 2nd and 3rd floor in the property called as 21st Century Commercial Complex, situate at Nampally, Bazarghat Road, Hyderabad and are carrying on Boarding and Lodging business in the said floors under the name and style of ‘Classic Lodge and Boarding’. Thy also purchased the parking area admeasuring 4600 square feets in the cellar of the said complex for parking the vehicles of their customers. The unofficial respondents 5 to 8 herein who are the owners of the adjacent complex bearing No. 5-8-165, Nampally have purchased basement area admeasuring 3000 square feet in the said complex where the petitioners are carrying on their business in 3rd and 4th floors. The said unofficial respondents have encroached upon the set backs left in the said complex of about 5 feet in breadth and 44 feet in length by building two bridges over it and making use of the said area illegally. It is stated that the unofficial respondents have no right to utilize the said set back area left for by the said complex as per the Municipal bye-laws. It is further stated that the unofficial respondents also opened shutters in their complex by encroaching upon the said set back area and that they not only encroached the public path ways but also the set back area left by the 21st Century Commercial Complex and they have also opened the windows in their complex facing the set back of the said complex. As the unofficial respondents have breached the Municipal bye-laws in all respects as aforesaid, the petitioners submitted the aforesaid representation and when the respondents have not taken any action pursuant to the same, the present Writ Petition was filed.
Initially a counter affidavit was filed on 02.09.2007 by the first respondent-MCH to the Writ Petition stating that for the premises in question, it (MCH) had granted permission in favour of 21st Century Constructions Private Limited for construction of Cellar (for parking) lower ground floor, Upper ground floor, 1st floor and 2nd floor for commercial purpose through permit No.259/51, dated 11.10.1990. In the said premises as respondents 5 to 8 have purchased some extent of floor area in the lower ground floor and upper ground floor along with parking space in cellar from the builder, they are in possession of the same. In remaining part of 2nd floor, third parties are in occupation and in 1st floor a hospital is running. The petitioner is not the owner of the property situate in 2nd floor and he is only a tenant of the original owner. It was also stated that the petitioner seems to have purchased Terrace rights from one of the directors of the said construction company and constructed third floor unauthorizedly without obtaining necessary permission from them (MCH) and the said floor is being used for running a lodge. Since it is difficult to run a lodge without parking facility and since there is no parking area meant for third floor, the petitioner alleged to have purchased the parking area from one of the directors of the said construction company in the year 2006 which has already been purchased by the unofficial respondents herein. These facts are not stated in the affidavit filed in support of the Writ Petition. With regard to the alleged purchase of basement area and encroached upon the set backs left for parking by respondents 5 to 8 in the said complex is concerned, it was stated that the same has not been made by the unofficial respondents. The original builder proceeded to construct the same and on coming to know of the same, a notice was issued under Section 636 of the Hyderabad Municipal Corporation Act on 24.06.2000 for removal of the same. Aggrieved by the same, the original builder filed suit in OS.No. 3067 of 2000 on the file of the learned III Junior Civil Judge, City Civil Court, Hyderabad. It was further stated regarding the blocking of passage that on a perusal of the original sanctioned plan, there is only one entrance to the complex i.e. from the Southern side and there is no other opening as alleged by the petitioner and in fact there is a difference of 7’ to 8’ in level between two complexes. The ground floor of the existing building becomes the Cellar of 21st Century Commercial Complex due to which there cannot be any opening from other sides except from the southern side and question of blocking the passage does not arise. As soon as the authorities found that the parking area has been misused by respondents 5 to 8, Municipal authorities have issued notices to the concerned under Sections 441, 442 and 443 of the Municipal Corporation of Hyderabad Act and directed to remove the encroachments and seized some of the material dumped in the cellar. Pursuant to the said notices, the material was removed from the cellar area. With regard to the submission of the representation submitted by the petitioner on 20.03.2007 is concerned, it is stated that the Town Planning Officials of circle IV through notice dated 12.04.2007 directed respondents 5 to 8 to produce the relevant records concerning the allegations made by the petitioner and as soon as response is received from respondents 5 to 8, the Corporation would take appropriate action as per law. It is further stated in the counter affidavit that respondents 5 to 8 have also filed a suit being OS.No. 6393 of 2005 on the file of the learned III Junior Civil Judge, City Civil Court, Hyderabad against it (Municipal Corporation of Hyderabad) and an injunction order granted by the Court below not to interfere with the possession of the property of respondents 5 to 8 in premises bearing No. 5-8-165 and 5-8-165/3 is in force.
When the Writ Petition has come up for consideration on 20.08.2014 this Court called for a status report in respect of the premises bearing No. 5-8-112, 21st Century Commercial Complex, Nampally, Bazarghat Road, Hyderabad. Accordingly a report is placed before this Court today, wherein it is stated as follows:
“ As on ground the building consisting of Cellar, Lower Ground/Basement Floor + Ground Floor + 3 upper floors. The entire 3rd floor is unauthorized, all around set backs are in deviation ranging from 7’ to 15’.
In front (South)—5’ shown as affected area, 5’-6’ corridor provided within 23’-0’’ setbacks. Towards eastern & northern sides also 5’-6’’ corridor provided. In the ramp towards North-East side waste material dumped by covering 50% of the area with slab. Following are the deviations against the sanctioned plan in respect of all round set backs.
The applicants have submitted BPS application vide No.BPS/767/TPS/C8/CZ/GHMC/2008 for regularization of unauthorized construction and deviations. The same could not be considered due to pendency of Court case filed by the petitioners in Writ Petition No. 7317/2007.”
In view of what is stated hereinabove, the Writ Petition is disposed of directing the first respondent to consider and dispose of the representation of the petitioner dated 20.03.2007 in the light of the information received by the first respondent pursuant to the notice issued to respondents 5 to 8 on 12.04.2007 by the Town Planning Officials of Circle-IV as stated in paragraph 11 of the counter affidavit dated 02.09.2007. In case no information has been received, the first respondent shall consider the representation of the petitioner dated 20.03.2007 based on the factual position existing as on to day and pass appropriate orders thereon, in accordance with law. This exercise shall be completed within a period of three months from the date of receipt of a copy of this order.
The Writ Petition is accordingly disposed. Miscellaneous petitions pending consideration if any shall stand closed. No order as to costs.
JUSTICE A. RAMALINGESWARA RAO DATED 17TH SEPTEMBER, 2014.
Msnro