HON’BLE SRI JUSTICE A. RAMALINGESWARA RAO WRIT PETITION No.12960 of 2009
Date: July 08, 2014
Between:
Jayabehri Silicon County (Alpha Beta Gamma) Apartment Owners Association, rep. by its Secretary Uday Kumar Sahu.
… Petitioner And
1. M/s Jayabheri Properties Pvt. Ltd., Rep. by its Managing Director Ram Mohan Maganti & 6 others.
… Respondents * * * HON’BLE SRI JUSTICE A. RAMALINGESWARA RAO WRIT PETITION No.12960 of 2009
O R D E R:
Heard learned counsel for the petitioner, learned counsel for respondents 1 to 4 and the learned standing counsel for the 7th respondent.
2. The case of the petitioner is that theirs is a registered association under the provisions of the A.P. Societies Registration Act, 2001. The first respondent constructed 162 flats in the Jayabheri Silicon County residential complex. The flats were constructed based on the proceedings dated 26.11.1999 issued by the 7th respondent. Initially, the members of the petitioner association entered into an agreement of sale and subsequently sale deeds were executed by the first respondent relying on the proceedings of the 7th respondent dated 26.11.1999. It appears that respondents 1 to 4 subsequently obtained a revised layout plan violating the sanctioned plan from the 7th respondent on 08.01.2002, by which time majority of the flats were sold. Under the revised layout plan, a commercial complex by name ‘Jayabheri Silicon County’ was constructed and sold to the 6th respondent. Though originally a residential complex was intended to be constructed on 18521 square yards of land, after construction of the commercial complex it is noticed that the residential complex was constructed over an area of 16568.045 square yards leaving a shortfall of 1953 square yards. It is the case of the petitioner that in respect of the common area, handing over the easement of free right of entry and exit in to residential complex running commercial operations and non-payment of property tax under commercial category for the premises used for commercial operations, respondents 1 to 4 have violated the rules and regulations. It is also their case that the promoters violated the provisions of A.P. Apartments (Promotion of Construction and Ownership) Act, 1987, and the Rules framed thereunder. It appears that a criminal case was registered against the promoters for the offence under Section 420 IPC in Crime No.721 of 2009 and the same is pending. Though the present writ petition was filed challenging the action of respondents 6 and 7 in issuing and releasing the revised layout dated 08.01.2002, the learned counsel for the petitioner confined his arguments to the violations made by respondents 1 to 4 with regard to common drive way from the residential complex to the road. The learned counsel for the petitioner submits that the common drive way which was mentioned as 7.32 metres on either side of the complex has been reduced after the construction of commercial complex and even as per the averments made in the counter-affidavit by respondents 1 to 4, they have not adhered to the revised approved layout.
3. The 7th respondent filed a counter-affidavit stating that they approved group development for blocks A, B, C and D, including amenity building, in Survey No.14 (P) of Kondapur Village, Serilingampally Mandal, Ranga Reddy District, over an extent of Ac.6.00 with certain conditions and released the said approval on 01.10.1999. The revised layout was approved on 08.01.2002 modifying block-A for office in the whole complex. At that time the land was in Serilingampally Municipality which is now merged with Greater Hyderabad Municipal Corporation (GHMC). It is the GHMC which is competent to take action in case of any deviations and lapses on the part of the developer. The revised layout plan was approved since the application was as per the norms.
4. A separate counter-affidavit is filed by respondents 1 to 4 stating that the first respondent is a reputed builder and executed many projects/ventures in and around Hyderabad. The first respondent was permitted to construct mixed development project on the total land admeasuring 29040 square yards comprising of Jayabheri Silicon Towers (I.T.Park) on the land admeasuring 7322 square yards which is abutting main road, Jayabheri Silicon County (residential apartments) on land admeasuring 18521 square yards which is on the middle part of land and club Jayabheri (Club House) on land in an extent of 3197 square yards rear part of the total land. After obtaining permission, the first respondent constructed 162 residential flats on the middle part of the land by name ‘Alfa, Beta & Gama’ and alienated all the flats in favour of the purchasers. Out of 162 flat owners, 139 flat owners are the members of the 5th respondent association and the petitioner association was never recognized by majority of the flat owners. At the time of sale of the flats, the vendees were satisfied with the title of the land, the specifications, common areas and pathways, including exit and entry passages with the width of 16 feet each, and purchased the flats. Though initial permission was obtained on 03.12.1999, the revised permit was obtained in the year 2002. They further state in para 16 of the counter-affidavit as follows:
“I respectfully submit that the said setback of 14 metres equivalent to 40 ft. on both the sides of Software/IT park was divided into two bits i.e., at the extreme end of both sides, a clear passage with 16 feet was earmarked for ingress and egress from main road till the residential apartment blocks and the dividing wall was constructed and the balance setback area within compound wall is proved for drive say of Software/IT part.”
5. From the above averments it is clear that the 7th respondent had approved the group development for blocks A, B, C and D, including amenity building, in Survey No.14 (P) of Kondapur Village, Serilingampally Mandal, Ranga Reddy District, over an extent of Ac.6.00 with certain conditions and released the said approval on 01.10.1999. The first respondent applied for a revised layout and the same was sanctioned on 08.01.2002 by modifying block A for office purpose in the whole complex. As per the averments made by respondents 1 to 4, the petitioner’s association was not recognized by them and majority of the members formed as 5th respondent association.
6. Be that as it may, the counsel for the petitioner submits that in view of the averments made in para 16 of the counter- affidavit of respondents 1 to 4, there is an admission with regard to reduction of common drive way which is contrary to the plan sanctioned in the year 1999 and by virtue of the revised layout the common drive way which was mentioned in the layout dated 01.10.1999 cannot be reduced now. The GHMC with which the erstwhile Serilingampally Municipality was merged is not made a party to the writ petition and the Corporation is the competent authority to take action for violation of constructions made by respondents 1 to 4. In the absence of Corporation as a party to the writ petition, no relief can be granted to the writ petitioner.
7. In the circumstances, the writ petitioner is given liberty to submit a comprehensive representation to the GHMC who shall consider the same and pass appropriate orders in accordance with law.
8. Subject to the above observation, the writ petition is disposed of. Pending miscellaneous petitions, if any, shall stand closed in consequence. No costs.
A. RAMALINGESWARA RAO, J Date: July 08, 2014 BSB
85 HON’BLE SRI JUSTICE A. RAMALINGESWARA RAO
WRIT PETITION No.12960 of 2009
Date: July 08, 2014
BSB