HON’BLE SRI JUSTICE A. RAMALINGESWARA RAO WRIT PETITION No.29075 of 2009
Date: June 17, 2014
Between:
J. Narahari … Petitioner And
1. The Commissioner, Greater Hyderabad Municipal Corporation, Hyderabad & 7 others.
… Respondents * * * HON’BLE SRI JUSTICE A. RAMALINGESWARA RAO WRIT PETITION No.29075 of 2009
O R D E R:
Heard learned counsel for the petitioner, learned standing counsel for respondents 1 to 3 and learned counsel for respondents 5 to 8.
2. The case of the petitioner is that respondents 5 to 8 are the owners of the plot in an extent of 764 square yards in house bearing Nos.3-6-369/A/22, 22/1, 22/2, Road No.1, Himayatnagar, Hyderabad. The said house is situated adjacent to the house of the petitioner. Respondents 5 to 8 entered into an agreement with the 4th respondent for construction of apartment and the first respondent accorded sanction for construction of stilt + 5 upper floors for construction of 10 apartments. From the development agreement entered in the month of August 2008 and from the beginning of construction, the 4th respondent was deviating the sanctioned plan. Immediately, the petitioner made a complaint to the first respondent on 02.09.2008 requesting to take appropriate steps to prevent the 4th respondent from deviating the sanctioned plan. But, no action was taken against the 4th respondent. In those circumstances, the petitioner filed W.P.No.21745 of 2008 and this Court, by order dated 25.02.2009, disposed of the writ petition directing the respondent Corporation to take appropriate and necessary action on the complaint of the petitioner after issuing notice to the unofficial respondents within a period of two months from the date of receipt of a copy of the order. When the said order was not implemented, the petitioner filed Contempt Case No.1444 of 2009 before this Court. At the time of taking up the contempt case, a counter-affidavit is filed by the first respondent stating that they have regularized the deviations committed by the 4th respondent under the Building Penalization Scheme by proceedings dated 05.10.2009 and the contempt case was accordingly closed.
3. In the counter-affidavit filed by the 2nd respondent in C.C.No.1444 of 2009 it was stated that respondents 5 to 8 filed O.S.No.3363 of 2008 before IV Junior Civil Judge, City Civil Court, Hyderabad, seeking permanent injunction and the Court granted interim orders of status quo. The main grievance of the petitioner is that though cut off date was fixed as 30.06.2008 for completion of building in order to eligible for regularization, the building was completed much later. Though the sanction was for 10 apartments, 20 apartments were constructed. Though the petitioner has been complaining about the deviations right from the beginning, the petitioner was not given any notice and he was not heard before passing of the orders of regularization. Respondents 5 to 8 constructed the building by taking advantage of the interim orders in O.S.No.3363 of 2008 and in those circumstances the construction made by the 4th respondent on behalf of respondents 5 to 8 ought not to have been allowed to be regularized.
4. The learned standing counsel for respondents 1 to 3 relied
[1]
on the decision in K.H.V. Prasad V. Govt. of Andhra Pradesh and submits that though no provision was made in the rules for filing an appeal by the objector, the objector was given liberty to approach the competent civil court if he so desires.
5. Respondents 4 to 8 filed counter-affidavits stating that the 4th respondent has commenced the construction work in the month of October 2006 and completed the same by first week of December 2007. The petitioner has been making complaints with oblique motives. In fact, respondents 1 to 3 gave a notice under Section 452 of the Hyderabad Municipal Corporation Act, 1955, on 06.04.2009 pointing out certain deviations and the 4th respondent submitted his explanation on 20.04.2009. An amount of Rs.4.00 lakhs was collected towards penalization charges on different dates and the deviated constructions were regularized by proceedings dated 05.10.2009.
6. In view of various averments and counter-affidavit averments made by the petitioner and respondents 5 to 8, this Court is not in a position to decide certain factual issues relating to completion of construction and the application of G.O.Ms.No.901 dated 31.12.2007 to the instant case. This Court also cannot give a finding with regard to the nature of constructions and violations made by the 4th respondent. However, in view of the liberty given by the Division Bench of this Court in the decision stated supra, the petitioner is given liberty to approach competent civil court and file a comprehensive suit raising all the contentions available in law.
7. Subject to the above, the writ petition is disposed of. Pending miscellaneous petitions, if any, shall stand dismissed in consequence. No costs.
A. RAMALINGESWARA RAO, J Date: June 17, 2014 BSB
61 HON’BLE SRI JUSTICE A. RAMALINGESWARA RAO
WRIT PETITION No.29075 of 2009
Date: June 17, 2014
BSB
[1] 2009 (4) ALT 71 (D.B.)