HON’BLE SRI JUSTICE A. RAMALINGESWARA RAO
WRIT PETITION No.26552 of 2009 WRIT PETITION No.28037 of 2009
and
WRIT PETITION No.12611 of 2010
Date: August 20, 2014
WRIT PETITION No.26552 of 2009
Between:
K. Anand Kumar.
… Petitioner and
1. Greater Hyderabad Municipal Corporation, rep. by its Commissioner, Hyderabad & 3 others.
… Respondents * * *
WRIT PETITION No.28037 of 2009
Between:
M. Bhanu Murthy … Petitioner and 1. Greater Hyderabad Municipal Corporation, rep. by its Commissioner, Hyderabad & 2 others.
… Respondents * * *
WRIT PETITION No.12611 of 2010
Between:
M. Bhanu Murthy … Petitioner and 1. Greater Hyderabad Municipal Corporation, rep. by its Chief Commissioner, Hyderabad & 2 others.
… Respondents * * * HON’BLE SRI JUSTICE A. RAMALINGESWARA RAO
WRIT PETITION No.26552 of 2009 WRIT PETITION No.28037 of 2009
and
WRIT PETITION No.12611 of 2010
COMMON ORDER:
All the three writ petitions are being disposed of by a common order in view of the common subject matter involved in these three writ petitions.
2. Heard learned counsel for the petitioners and learned standing counsel for the respondents.
3. W.P.No.26552 of 2009:
The petitioner states that he is the absolute owner of Plot No.60/2 with old house bearing Nos.2-2-1130/15/B, 2-2-1130/15/B/1, 2-2-1130/15/B/2 and 2-2-1130/15/B/3 situated in Survey No.23/1 admeasuring 300 square yards situated at New Nallakunta, Hyderabad. He agreed to purchase the said plot from one K. Rajeswari for a valuable consideration and he paid most of the amount. Only a balance amount of Rs.2.00 lakhs remain to be paid and in spite of his several requests to his vendors, no sale deed was executed. He filed O.S.No.235 of 2006 on the file of III Additional Chief Judge, C i t y Civil Court, Hyderabad, for specific performance of agreement of sale on 07.07.2006 and the said suit was decreed on 28.10.2006 by directing the vendors to execute sale deed on receipt of balance sale consideration of Rs.2.00 lakhs. The petitioner deposited the said amount on 17.11.2006 in the Court of III Additional Chief Judge, City Civil Court, Hyderabad. He filed E.P.No.36 of 2007 also and the sale deed was executed and registered on 30.08.2007. He filed E.P.No.109 of 2007 for taking possession of the property and when the Court wanted to execute delivery warrant, it was resisted by the 4th respondent who moved a claim petition in the said E.P. The petitioner came to know that the 4th respondent obtained a sale deed from the vendors and in view of the dispute, O.S.No.269 of 2006, O.S.No.675 of 2007, O.S.No.323 of 2006 and C.C.No.142 of 2007 are pending between the parties. In the light of the above developments, the petitioner submitted a petition to respondents 1 to 3 to cancel the construction Permit No.15/3 & B1 to B3, dated 20.02.2007, issued in favour of the 4th respondent. When respondents 1 to 3 did not take any action against the 4th respondent, who completed the construction and was using the building for commercial use, the present writ petition was filed challenging the inaction of respondents 1 to 3.
4. W.P.No.28037 of 2009:
This writ petition was filed by the 4th respondent in W.P.No.26552 of 2009 stating that he is the absolute owner and possessor of premises bearing No.2-2- 1130/15/B and B/1 to 3 situated at Shivam Road, Nallakunta, Hyderabad, having purchased the same under registered sale deed dated 29.05.2006. At the time of purchase of the property, there were three shops in the ground floor and first floor and on the rear side there was a residential portion. After purchasing the house, he obtained permit vide Permit No.140/60 dated 22.02.2007. The petitioner in W.P.No.26552 of 2009 was arrayed as respondent No.3 in the present writ petition and the petitioner states that there are certain disputes between him and the 3rd respondent. The case of the petitioner is that at the instance of the 3rd respondent, respondents 1 and 2 were taking action for demolition of the building and they issued a notice under Section 452 of the Greater Hyderabad Municipal Corporation Act, 1955 (for short ‘the Act’) on 09.12.2009 for which he submitted an explanation on 15.12.2009. In spite of the same, when respondents 1 and 2 issued a notice under Section 636 of the Act on 21.12.2009, the present writ petition was filed.
5. W.P.No.12611 of 2010:
The petitioner in W.P.No.28037 of 2009 filed the present writ petition challenging the closure notice issued by the Assistant Medical Officer of Health on 28.05.2010. The petitioner states that after purchase of the property he let out the shops to tenants. The entire Shivam Road is with full of commercial activities for the last 30 years and all building permissions were granted only for residential purpose. But the buildings were being used for commercial purposes. The Government issued G.O.Ms.No.766 dated 18.10.2007, notifying several roads for allowing commercial activities from Osmania University Campus Junction to 6 number bus stop junction (Amberpet Road) via Shivam Road, Tilak Road Junction, for commercial use. The petitioner applied to the respondent Corporation vide application dated 29.05.2010 enclosing a cheque for Rs.5,000/- with an undertaking to pay further amount as and when demanded seeking permission for commercial use of the building. In spite of considering the application, when the Assistant Medical Officer of Health of GHMC issued the closure notice dated 28.05.2010, the present writ petition was filed on the ground that the notice was issued at the instance of one K. Anand Kumar with whom there are disputes with regard to the property.
6. The closure notice issued by the Assistant Medical Officer of Health reads as follows:
“Rc.No.49 HS/C9/GHMC/2010 Date: 28 May 2010
Closure Notice
Sub: GHMC- Health & Sanitation- unauthorized conversion of permitted usage- misuse of building- not providing of required parking- Non-compliance with the provisions of the HMC Act bye laws/regulations- (Direction of the Hon’ble High Court in suo motu Writ Petition No.15591 of 2006, dated 26.7.2007- closed the establishment- intimated- reg.
Ref: Complaint submitted by Sri. K. Anand Kumar, R/o 2-2- 647/27/5/1, C.E. Colony, Bagh Amberpet, Hyd.
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1. Vide reference above notice has been issued indicating the violations/deviations/ unauthorized usage/misuse of building noticed in respect of your establishment.
2. Running the trade without obtaining trade license.
3. Hence you may be directed to close down the trade immediately.”
7. A perusal of the above closure notice reveals that it was issued for unauthorized conversion of permitted usage of building and for not providing required parking. The learned counsel for the petitioner submits that the present notice was issued without specifying details only at the instance of the petitioner in W.P.No.26552 of 2009. The learned standing counsel for the respondent Corporation fairly submits that the entire stretch of Shivam Road has been declared as a commercial zone and the petitioner can use his building for commercial activity, provided he pays the required fee. The petitioner paid only an amount of Rs.5,000/- and his application would be considered after payment of full amount. The learned counsel for the petitioner submits that the petitioner did not receive any notice asking him to pay further amount and if the respondents demand any further amount, he is ready to pay the said amount. It is also further case of the petitioner that the building was constructed after obtaining a valid permit from the Municipal Corporation and there cannot be any grievance of the petitioner in W.P.No.26552 of 2009 with regard to the usage of the said building in view of G.O.Ms.No.766 dated 18.10.2007.
8. In view of the said Government Order and the submission made by the learned standing counsel for the GHMC, it is clear that the area where the building of the petitioner is located is a commercial area and the petitioner can utilize the building for commercial activities by paying proper fee. The GHMC is not concerned with the title dispute pending between the petitioner in W.P.No.26552 of 2009 and W.P.No.12611 of 2010 and their grievances have to be settled elsewhere. So far as utilization of the building for commercial activities is concerned, the GHMC can issue appropriate notice for payment of proper fee to the petitioner in W.P.No.12611 of 2010 subject to observance of other rules and regulations and the petitioner has to pay the said amount.
9. In the circumstances, these three writ petitions are disposed of directing the Greater Hyderabad Municipal Corporation to issue a notice to the petitioner in W.P.No.12611 of 2010 for payment of the ascertained sum of money for utilization of the building for commercial purposes within a period of three months from the date of receipt of a copy of the order and the petitioner shall pay the same within one month thereafter. Respondents 1 and 2 shall not interfere with the possession of the petitioner only on the ground that it is being utilized for commercial activities, provided he has not violated any other provision of law. The petitioner in W.P.No.26552 of 2009 can agitate his rights in the pending civil suits between him and the petitioner in W.P.No.12611 of 2010. Pending miscellaneous petitions, if any, shall stand dismissed in consequence. No costs.
A. RAMALINGESWARA RAO, J Date: August 20, 2014 BSB
1 HON’BLE SRI JUSTICE A. RAMALINGESWARA RAO
WRIT PETITION No.26552 of 2009 WRIT PETITION No.28037 of 2009
and
WRIT PETITION No.12611 of 2010
Date: August 20, 2014
BSB