THE HON'BLE THE CHIEF JUSTICE SATISH CHANDRA SHARMA
AND
THE HON'BLE SRI JUSTICE N. TUKARAMJI
WRIT APPEAL No.562 of 2008
JUDGMENT: (Per the Hon'ble the Chief Justice Satish Chandra Sharma)
The present writ appeal is arising out of an order
dated 01.04.2008 passed by the learned Single Judge in
W.P.No.23347 of 2007.
The learned Single Judge has disposed of
W.P.No.23347 of 2007 along with W.P.No.19214 of 2007
by a common order. W.P.No.19214 of 2007 was filed by
M/s.Santhi Sikhara Apartments Welfare Association,
representing the flat owners and W.P.No.23347 of 2007
was filed by the purchasers of the garages which were in
the cellar of the building. In W.P.No.19214 of 2007, it
was alleged that the respondents No.4 to 65 have
encroached upon the common parking area and a prayer was made to make the parking area available to the flat owners and for issuance of appropriate direction to the Greater Hyderabad Municipal Corporation (GHMC) to take action under Section 636 of the Hyderabad Municipal Corporation Act, 1955 (for short, the Act). The learned Single Judge has dismissed the writ petition by observing that since the GHMC has initiated appropriate and prompt steps for demolition of the unlawful 2 structures in the cellar portions, no specific relief need be granted in the writ petition.
There is no dispute that the area in question is common parking area and unauthorised structures were built up in the cellar area of the apartment. The learned Single Judge has directed the GHMC to ensure action of demolition of unlawful structures in the cellar portions and to proceed ahead in accordance with law.
In the considered opinion of this Court, if the area is meant for parking as per the sanctioned layout, the same has to be earmarked for parking alone and it cannot be used for other purposes, as rightly held by the learned Single Judge and therefore, this Court does not find any reason to interfere with the order passed by the learned Single Judge insofar as W.P.No.19214 of 2007, which has been filed by the flat owners of the apartment.
The other writ petition i.e., W.P.No.23347 of 2007 has been filed by those persons who are the occupants of the cellar area meant only for parking and the learned Single Judge has dismissed the writ petition holding that action has rightly been initiated under the Act and after following due process of law, the parking area has to be cleared.
3
Before this Court, no document has been brought on record to establish that the area in question was not open parking area or was sanctioned for construction for some other purposes. Therefore, in the considered opinion of this Court, the learned Single Judge was justified in directing the GHMC to clear the parking area enabling the flat owners to park their vehicles. Before the learned Single Judge and before this Court also, it was argued that the builder has sold the parking area to the occupiers/petitioners in W.P.No.23347 of 2007. The learned Single Judge has rightly granted liberty to the petitioners therein to pursue appropriate civil or criminal proceedings against the builder/vendors. This Court, in the light of the admitted fact that the area in question was exclusively meant for parking, does not find reason to interfere with the order passed by the learned Single Judge.
Resultantly, the writ appeal is dismissed. However, it is made clear that if the parking area has not been cleared so far, the same shall be cleared within a period of thirty days from today and the Commissioner, GHMC, shall submit a compliance report to the Registrar General of this Court within a period of thirty days. Non- compliance of this order on the part of the GHMC will 4 expose the Commissioner for contempt of court proceedings.
The miscellaneous applications pending in this appeal, if any, shall stand closed. There shall be no order as to costs.
___________________________ SATISH CHANDRA SHARMA, CJ ___________________________ N. TUKARAMJI, J 13.12.2021 vs