THE HON'BLE SMT. JUSTICE LALITHA KANNEGANTI
WRIT PETITION Nos.18529 of 2021, 18645 of 2021, 41135 of 2022 and
40729 of 2022
COMMON ORDER:
The writ petition i.e. W.P.No.18529 of 2022 is filed seeking the following
relief:
"... to issue an appropriate writ, order or direction more particularly one in the
nature of writ of mandamus declaring the inaction of the official respondents 2
to 5 from stopping further unauthorised construction unlawfully carried on at Plot No.3, D.No.8-2-293/82/F/A/3 situated at Road No.1, Film Nagar, Jubilee Hills, Hyderabad by removing violators from the premises and cause steps to prevent their re-entry initiating criminal action against 6th respondent and sealing the property for effectively executing its Notices dated 17.05.2021, 05/07.06 2021, 17.06.2021 bearing No.03/CP/C18/GHMC/2021 issued under sections 452(1) and (2), 461 (1), 636 of GHMC Act, respectively as illegal, politically motivate, biased, arbitrary, against municipal laws, building regulations, rules and bye-laws, common law and consequently direct the official respondents 2 to 5 to stop further unauthorised construction unlawfully carried on at Plot No.3, D.No.8-2-293/82/F/A/3 situated at Road No.1, Film Nagar, Jubilee Hills, Hyderabad to remove violator from the premises and cause steps to prevent their re-entry to initiate criminal action against 6th respondent and seal the property for effectively executing its Notices dated 17.05.2021, 05/07.06.2021, 17.06.2021 bearing No. 03/CP/C18/GHMC/2021 issued under sections 452(1) and (2), 461 (1), 636 of GHMC Act respectively".
2. The writ petition i.e. W.P.No.18645 of 2021 is filed seeking the following relief:
"... to issue an appropriate writ, order or direction more in the nature of Mandamus declaring the action of the Respondents more particularly that of Respondents 3 and 4 in affixing Notice on the wall of restaurant with No. 03/ACP/C18/GHMC/2021 dated 17.06.2021 under 636 of G.H.M.C Act on a false pretext to have issued a notice under/S 452(2) of H.M.C Act dated 05.06.2021 alleging to have acted upon a complaint petition by the 5th respondent owner himself for property bearing 8-2-293/82/F/A/3 during the pendency of my reply dated 09.06.2021 requesting the Respondents for personal hearing as being illegal further the action of 3rd Respondent 2 threatening to demolish the part of rented premises pre-existing sheds erected without any concrete base or slab during the pendency of reply or otherwise following the due process of law as being illegal, arbitrary, unconstitutional against the letter and spirit of Judgment rendered by this Honorable Court in case of SYED JAHANQIR V DISTRICT COLLECTOR and OTHERS (W.P.No.26405/12) apart from being violative of principles of natural Justice otherwise violative of Articles 19, 21 and 300A of the Constitution of India and ...".
3. The writ petition i.e. W.P.No.41135 of 2022 is filed seeking the following relief:
"... to issue an appropriate writ, order or direction more in the nature of Mandamus, declaring the action of the Respondents more particularly that of Respondent No.4 in affixing a copy of speaking order under TSBPASS Act DATED 02.11.2022 under No.949/TPS/DC/CIR-18/KZ/GHMC/2022 on the wall of our restaurant directing to remove the structures claiming to have rejected the explanation dated 05.06.2021 unmindful of pendency of writ petition No.18645/2021 and orders of status quo 10.08.2021 holding an opinion about an unconnected writ petition filed on adjacent plot re quiring the petitioner company to remove sheds in 7 days, by holding a perverse interpretation of orders of this Honorable Court allowing W.P.No.4751/2019 in favor of petitioner, otherwise unmindful of matter being sub-judice under W.P.No.18529/2021 filed by the very 5th respondent himself as being illegal and contemptuous further the action of Respondents 3 and 4 threatening to demolish the part of rented premises consisting of preexisting sheds erected without any concrete base or slab during the pendency of the writ petitions or otherwise without following the due process of law as being illegal, arbitrary, unconstitutional against the letter and spirit of Judgment rendered by this Honorable Court in case of SYED JAHANGIR V DISTRICT COLLECTOR and OTHERS (WP No.26405/12) apart from being violative of principles of natural Justice otherwise violative of Articles 19, 21 and 300A of the Constitution of India and ....".
4. The writ petition i.e. W.P.No.40729 of 2022 is filed seeking the following relief:
"... to issue an appropriate writ, order or direction more in the nature of Mandamus, declaring the action of the Respondents 3 and 4 in affixing Notice 3 on the wall of our restaurant with No.02/TPS/DC/CIR-18KZ/GHMC/2022 dated 28.10.2022 without mentioning any provision of HMC Act being violated without there being any specific address to any person from petitioner company alleging to have acted upon a complaint petition by new purchaser himself for property bearing 8-2-293/82/F/A/2 and interfering with our daily activities during the pendency of Petitioner reply dated 29.10.2022 as being illegal further the action of 3rd Respondent threatening to demolish the part of rented premises preexisting sheds erected without any concrete base or slab during the pendency of Petitioner reply or otherwise without following the due process of law as being illegal arbitrary unconstitutional against the letter and spirit of Judgment rendered by this Honorable Court in case of SYED JAHANGIR V DISTRICT COLLECTOR and OTHERS (WP No.26405/12) apart from being violative of principles of natural Justice otherwise violative of Articles 19, 21 and 300A of the Constitution of India and ....".
4. The relief sought in all the four writ petitions is against the municipal corporation. The writ petitions i.e. W.P.Nos.18529 of 2021, 18645 of 2021 and 41135 of 2022 are filed in respect of the same property. The petitioner/owner in W.P.No.18529 of 2021 is arrayed as unofficial respondent in W.P.Nos.18645 of 2021 and 41135 of 2022 that are filed by the tenant. The writ petition i.e. W.P.No.40729 of 2022 is filed by the very same tenant in respect of another property which is situated adjacent to the subject property of W.P.Nos.18529 of 2021, 18645 of 2021 and 41135 of 2022.
5. The petitioner in W.P.No.18529 of 2021 who is unofficial respondent in W.P.Nos.18645 of 2021 and 41135 of 2022 is hereafter referred to as 'owner'. The petitioner in W.P.Nos.18645 of 2021, 41135 of 2022 and 40729 of 2022 who is unofficial respondent in W.P.No.18529 of 2021 is referred as 4 'tenant'. The unofficial respondent in W.P.No.40729 of 2022 is referred as 'owner.
6. The writ petition i.e.W.P.No.18529 of 2021 is filed by the owner aggrieved by the action of the respondents in not taking action on the unauthorized constructions made by the tenant, who thereafter has filed W.P.No.18645 of 2021 questioning the notice dated 17.06.2021 affixed on the wall of restaurant under 636 of Greater Hyderabad Municipal Corporation Act, 1955 (in short "the Act"). According to the respondents, they have issued notice under Section 452(2) of Act and according to the tenant, the respondents have not issued the said notice under Section 452(2) of the Act to him and proceeded to issue the notice under Section 636 of the GHMC Act.
7. This court on 12.11.2021 in W.P.No.18645 of 2021 has passed the following order:
"Vide order dated 10.08.2021, this Court directed both the petitioner and unofficial respondents to maintain status quo with regard to construction of the subject property.
Learned counsel appearing for the 5th respondent would submit that in violation of the said order dated 10.08.2021, the petitioner is proceeding with the construction. In proof of the same, he has filed photographs. He has also submitted representation dated 22.09.2021 to Zonal Commissioner, Circle-18, GHMC, Khairatabad with a request to take necessary legal action against the violators for protecting seizure order to stop further construction.
It is relevant to note that considering the submission made by Sri Pasham Krishna Reddy, learned standing counsel that the respondent authorities have already seized the subject property, this Court has directed to maintain status-quo vide order dated 10.08.2021.
In view of the said status quo order and the allegation made by the 5th respondent that the petitioner is making construction in violation of the said order dated 10.08.2021, the Deputy Commissioner, GHMC, Circle 18, Banjara Hills, shall conduct site inspection and submit report along with the photographs, list on l7.11.2021".5
8. During the pendency of the above writ petitions, the tenant has filed writ petition i.e.W.P.No.41135 of 2022 questioning the action of the respondents in affixing the order under TS-bPASS Act, dated 02.11.2022 on the wall of their restaurant directing to remove the structures claiming to have rejected the explanation dated 05.06.2021. He has also filed another writ petition i.e.W.P.No.40729 of 2022 questioning the notice dated 28.10.2022 issued by the respondents alleging that the same is without mentioning any provision of law.
9. According to the owner, though the unauthorized constructions are made by the tenant, no action has been initiated by the respondents. It is the argument of the learned counsel for the tenant that in some cases, notices are not served and in some cases, explanation is not considered properly and he submits that the order that is passed under the TS-bPASS Act dated 02.11.2022 is without following the due procedure. It is also submitted that the tenant has not made any new constructions and he is only making renovation/alteration which suits his business and the respondents without properly conducting any enquiry have issued the notice. He submits that the civil disputes are pending between the parties which are filed by the owner as well as tenant and as the owner could not succeed before the civil courts, he has approached the municipality and under the guise of the representation given to the respondents, the owner wants to evict the tenant. According to him, the respondent authorities are also not conducting any proper enquiry and they have not considered the representations that are filed by the tenant.
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10. Mr. K. Siddhardh Rao, learned standing counsel for the respondent municipality submits that the respondents are making constructions in both the subject properties i.e. Plot Nos.2 and 3 without any permission and in view of the status-quo orders passed by this court, they could not take any further action. He submits that in spite of the status quo orders passed by this court, the tenant is going ahead with the construction.
11. This court in W.P.No.18645 of 2021 has directed the municipality to file a report and a copy of the report is placed before this court wherein, they have categorically mentioned that the tenant is going ahead with the illegal construction.
12. Learned standing counsel further submits that thereafter the tenant has filed W.P.No.41135 of 2022 questioning the speaking order dated 02.11.2022 passed under the TS-bPASS Act. He submits that no legal and tenable grounds are advanced by the tenant before this court for seeking interference with the said order. He submits that when they have issued a notice under Section 636 of the Act stating that there are unauthorized constructions, the tenant has submitted his explanation and as the explanation is not satisfactory to the respondents, the said speaking order under the TS-bPASS Act is passed.
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13. The entire dispute in these writ petitions appears to be between the landlord/purchaser and the tenant and in that regard, civil suits are pending before the competent civil courts. Irrespective of the pending suits, neither the owner nor the tenant can make any constructions contrary to the sanction plan or without obtaining permission from the respondent municipality. If such constructions are made, the respondents are bound to take appropriate action against the said structures. Hence, this court is not inclined to go into the inter-se disputes between the parties.
14. This court is concerned only with the illegal constructions either it is made by the tenant or the owner of the property. The respondents shall issue notice to both owner and tenant about the illegal constructions that are made within a period of one (1) week from the date of receipt of copy of the order. Thereafter, both the owner as well as tenant shall submit their respective explanation to the show cause notice within a period of two (2) weeks from thereon and the respondents shall give an opportunity of hearing to both parties and thereafter, they shall pass appropriate orders. The entire process shall be completed within a period of eight (8) weeks. Till such time, no coercive steps shall be taken by the respondent municipality and also tenant shall not make any constructions in the subject premises.
15. Accordingly, all the writ petitions are disposed of. No order as to costs. 8
Miscellaneous petitions, if any pending in this writ petition shall stand closed.
____________________________ LALITHA KANNEGANTI, J 11th November, 2022 gvl Note: Issue CC forthwith