HON'BLE SMT. JUSTICE G. ANUPAMA CHAKRAVARTHY
SECOND APPEAL No.599 of 2013
JUDGMENT :
This Second Appeal is arising out of the judgment dated 14.09.2012 in A.S.No.364 of 2011 on the file of the X Additional Chief Judge (Fast Track Court), City Civil Court, Hyderabad, confirming the judgment and decree dated 03.11.2011, passed in O.S.No.1572 of 2010 on the file of IV Junior Civil Judge, City Civil Court, Hyderabad.
2. For the sake of convenience, the parties are referred to as arrayed before the trial Court.
3. Heard learned Counsel for the appellant. None appeared on behalf of the respondents/officials of Greater Hyderabad Municipal Corporation. Perused the record.
4. The appellant is the plaintiff. The plaintiff filed the suit to declare the notice dated 31.03.2010, issued under Section 452 of the Hyderabad Municipal Corporation Act, as illegal, null and void and also sought for grant of perpetual injunction restraining the 2 GAC, J S.A.No.599 of 2013 defendant and all its subordinates from interfering or demolishing the suit schedule property i.e. house bearing Municipal No.3-2- 848/1 to 11, admeasuring 2021 square yards with structures, situated at Kachiguda, Hyderabad.
5. The case of the plaintiff is that the plaintiff-Society purchased the plot admeasuring 1012 square yards out of premises bearing Municipal No.3-2-848 under the registered sale deed dated 10.04.1970, bearing document No.1127/1970. The plaintiff- Society also purchased a plot admeasuring 1009 square yards in Municipal No.3-2-848, under another registered sale deed dated 10.04.1970 bearing document No.1128/1970. The total land under both the documents is admeasuring 2021 square yards, which is the suit schedule property. The plaintiff-Society is running educational institutions, namely, Badruka College of Commerce, Badruka College for Post Graduate Centre, Bankatlal Badruka College of Information Technology, Badruka Institute of Professional Studies, Badruka Junior College for Girls, Badruka Institute of Foreign Trade, Badruka Institute of Foreign Education and Shri Laxmi Nivas Badruka Vidyarthi Grih. It is the specific averment in the 3 GAC, J S.A.No.599 of 2013 plaint that as the available space is not sufficient for the Society, it had obtained permission from the defendants for construction of cellar plus four upper floors, vide Permit No.154/48, dated 07.01.2008 and completed its construction. However, due to paucity of funds, the plaintiff could not finish minor works, which need not require permission under Rule 3.5 of Building bye-laws and plaintiff commenced working in the said building.
6. It is the further case of the plaintiff that the defendants issued notice dated 31.03.2010, under Section 452 of the Hyderabad Municipal Corporation Act alleging that the plaintiff has deviated from the sanctioned plan, by constructing extra floor. Prior to the said notice, the defendant-officials visited the suit schedule property and threatened to demolish the constructions so raised. Therefore, the plaintiff got issued notice under Section 685 of Hyderabad Municipal Corporation Act on 15.03.2010, but the defendants, without considering the said notice, issued the above said notice with false and incorrect allegations, for which, the plaintiff submitted a reply notice dated 31.03.2010 informing that for the deviation of structures in the suit property, they submitted 4 GAC, J S.A.No.599 of 2013 an application under the scheme of regularization. It is the further case of the plaintiff that the plaintiff has given consent for acquiring the land by defendants for the purpose of road widening, free of cost and as such the plaintiff would be entitled for additional floor space index, and therefore, it gave 50 square yards for gaining additional FSI by raising a shed, which is alleged as an additional floor by the defendants, and therefore, prayed to declare the notice issued by the Municipal Corporation of Hyderabad as illegal, null and void.
7. On the other hand, the defendant-Corporation filed a detailed written statement denying the material allegations made in the plaint and contended that the suit is not maintainable either on law or on facts and is liable to be dismissed for the reason that the plaintiff failed to issue mandatory notice under Section 685 of the Hyderabad Municipal Corporation Act, before filing the suit. Further, the defendants admitted that the plaintiff made an application for construction permission under Sections 428 to 433 of the Hyderabad Municipal Corporation Act and accordingly permission was granted for cellar/stilt for parking plus 4 upper 5 GAC, J S.A.No.599 of 2013 floors, but the plaintiff had made large deviations against the sanctioned plan and violated the building bye-laws and zoning regulations and that the plaintiff failed to intimate the defendants before commencement of construction, as required under Section 440 of the Hyderabad Municipal Corporation Act and pointed out the deviations made by the plaintiff as under:
Side Setbacks insisted in Setbacks maintained the sanctioned plan at the site Front open space 6.00 meters 3.00 meters Rear open space 5.30 meters 4.00 to 5.30 meters Side open space (E) 5.00 meters 5.00 meters Side open space (W) 9.40 meters 3.00 meters Further, the plaintiff also constructed a shed on the 5th floor, which is in violation of G.O.Ms.No.86, dated 03.03.2006, Zoning Regulations, 1981 and Building Bye-laws. It is also denied by the defendants that the officials of the Municipal Corporation visited and threatened the plaintiff for demolition of the structures, and in fact, their officials went only for inspection of the suit schedule property and came to know about the deviations, and therefore, prayed to dismiss the suit as devoid of merits. 6
GAC, J S.A.No.599 of 2013
8. Basing on the pleadings, the trial Court has framed the following issues for trial:
"1. Whether the plaintiff is entitled for declaration as prayed for ?
2. Whether the plaintiff is entitled for perpetual injunction as prayed for ?
3. Whether the plaintiff issued notice under Section 685 of the HMC Act before filing the suit ?
4. To what relief ?
9. During the course of trial, on behalf of the plaintiff, PW-1 was examined and Exs.A-1 to A-8 were marked. The defendants reported no evidence.
10. On considering the oral and documentary evidence on record, the trial Court has dismissed the suit with a specific finding that the plaintiff has to prove his case on the strength of his own evidence and issuance of notice under Section 685 of the Hyderabad Municipal Corporation Act is helpful only for maintainability of suit and further declined to grant injunction in favour of plaintiff as the Court had come to an opinion that Ex.A-5/notice was issued without any malafide intention by the 7 GAC, J S.A.No.599 of 2013 Corporation, strictly as per the provisions of Hyderabad Municipal Corporation Act, and concluded that the plaintiff is not entitled for declaration of the notice as illegal, null and void and consequentially, the relief for injunction was also rejected.
11. Being aggrieved by the judgment and decree of the IV Junior Civil Judge, City Civil Court, Hyderabad in O.S.No.1572 of 2010, the unsuccessful plaintiff has filed an appeal vide A.S.No.364 of 2011 on the file of X Additional Chief Judge, City Civil Court, Hyderabad.
12. The first appellate Court, after hearing the rival contentions of the parties and considering the material on record, has framed the following point for consideration:
"Whether the decree and judgment of the trial Court in O.S.No.1572/2010, dated 03.11.2011 on the file of IV Junior Civil Judge, City Civil Court, Hyderabad suffer from any infirmity either on facts or on law and whether the same is liable to be set aside ?
13. On considering the contentions of the parties and material on record, the first appellate Court has dismissed the appeal confirming the judgment of the trial Court. 8
GAC, J S.A.No.599 of 2013
14. Being aggrieved, this second appeal is filed by the plaintiff raising the following substantial questions of law along with the grounds of appeal:
"(1) Whether the constructions raised as alleged of extra floor are only Sun sheds for shade to the students for which no permission is required as per Building Bye Law 3.5 ?
(2) Whether the action of the respondent in issuing notice is malafide one ?
(3) Whether the notice is in consonance of Building Bye Law 3.5 ?
(4) Whether the notice dated 31/3/2010 issued under Section 452 of GHMC Act is legal without inspection under Section 451 of the GHMC Act ?
(5) Whether the Corporation is right in issuing a notice in a cyclostyle manner ?
(6) Whether the Corporation have complied with the provisions of the Act as envisaged by Full Bench of this Hon'ble Court in 3 Aces case ?"
15. It is contended by the learned counsel for the appellant that the extra floor constructed is only of sun shed for shade for the students, for which, no permission is required as per Building Bye Law Rule 3.5 and as such, the notice is not in consonance with the 9 GAC, J S.A.No.599 of 2013 said Bye law, and therefore, prayed to allow the appeal by setting aside the judgments of both the Courts below.
16. This Second Appeal is of the year, 2013 and it underwent numerous adjournments and is still at the admission stage. On perusal of the entire record, it is evident that the suit is filed seeking to declare the notice dated 31.03.2010 issued under Section 452 of the Hyderabad Municipal Corporation Act as illegal, null and void and for restraining the Municipal authorities from interfering or demolishing the structures in the suit schedule property i.e., H.No.3-4-848/1-11 admeasuring 2021 square yards, situated at Kachiguda, Hyderabad.
17. Admittedly, the Municipal authorities have issued permission for construction of stilt for parking plus four upper floors. On perusal of the notice issued by the respondents, it is evident that the following deviations have been made by the plaintiff with respect to mandatory open spaces :-
Side Setbacks insisted in Setbacks maintained the sanctioned plan at the site Front open space 6.00 meters 3.00 meters Rear open space 5.30 meters 4.00 to 5.30 meters 10 GAC, J S.A.No.599 of 2013 Side open space (E) 5.00 meters 5.00 meters Side open space (W) 9.40 meters 3.00 meters Further, in addition to the said deviations, the plaintiff has constructed a sun-shade shed on the 5th floor without obtaining permission from the Municipal authorities.
18. It is the specific contention of the learned counsel for appellant that as per Rule 3.5 of the Building Bye-Laws, no permission is required for construction of a shed. For better appreciation, it is relevant to extract Rule 3.5 of the Building Bye- Laws, which reads as under :
"No application for building permission is necessary for the following deviations (See bye-law No.1.3.4) provided they do not violate any provision regarding general building requirements (See Section B), structural stability and fire safety requirements of the bye-laws.
a. Gardening b. White Washing c. Painting d. Plastering and patch work e. Re-flooring and f. Construction of sun-sheds not exceeding 1 meter on one's own land."
19. Admittedly, the above Rule specifies that permission is not required for certain structures mentioned therein. But, in the 11 GAC, J S.A.No.599 of 2013 present case, the plaintiff has constructed a shed on the 5th floor without obtaining permission from the Municipal authorities. As per Rule 3.5 (f) of Building Bye-Laws, no permission is required for construction of Sun-shade shed not exceeding 1 meter on one's own land, but in the present case, the plaintiff has constructed the Sun-shade shed on the entire 5th floor in order to accommodate the students for lunch. Therefore, the contention of the plaintiff that permission is not required as per Rule 3.5 of the Building Bye-Laws for construction of such sun-shed, cannot be accepted.
20. Further, learned counsel for the appellant relied on the judgment of the Andhra Pradesh High Court reported in 3 Aces, Hyderabad v. Municipal Corporation of Hyderabad1 and contended that the Municipal authorities cannot interfere with the constructions, if they do not cause any public inconvenience. Their Lordships, while dealing with the above said case, have framed certain guidelines to be followed by the Municipal authorities in respect of the illegal constructions and specifically held that the 1 1994 (3) ALT 73 12 GAC, J S.A.No.599 of 2013 guidelines should not be treated as exhaustive but only illustrative and the discretion to be exercised by the Corporation in any given case should not be arbitrary or capricious. The relevant portion of guidelines in the said judgment reads as follows :-
"1) In cases where applications having been duly filed in accordance with law, after fulfilling all requirements, seeking permission to construct buildings and permission was also granted by the Corporation, the power of demolition should be exercised by the Corporation only if the deviations made, during the construction are not in public interest or cause public nuisance or hazardous or dangerous to public safety including the residents therein. If the deviations of violations are minor, minimal or trivial which do not affect public at large, the Corporation will not resort to demolition.
2) Whatever is stated in guideline number (1) will also equally apply to the permissions deemed to have been granted under Section 437 of "The Act".
3) If no application has been filed seeking permission and the construction is made without any permission whatsoever, it is open to the Corporation to demolish and pull down or remove the said unauthorised structure in its discretion. Otherwise, having regard to the facts and circumstances of the case, it will be putting a premium on the unauthorised construction.
When the Corporation comes to the conclusion, keeping the above guidelines in view, that the 13 GAC, J S.A.No.599 of 2013 construction in question is required to be demolished or pull down, it should follow the procedure indicated below:
(i) The demolition should not be resorted to during festival days declared by the State Government as public holidays excluding Sundays. If the festival day declared by the Government as a public holiday falls on a Sunday, on that Sunday also, the Corporation should not resort to demolition.
(ii) In any case, there should not be any
demolition after sun set and before sun
rise.
(iii) The Corporation should give notice of demolition as required by the statute fixing the date of demolition. Even on the said date, before actually resorting to the demolition, the Corporation should give reasonable time, depending upon the premises sought to be demolished, for the inmates to withdraw from the premises. If within the time given the inmates do not withdraw, the Corporation may proceed with actual demolition."
Admittedly, the above said guidelines are laid down in view of the fact that the Corporation is a public authority and its action must be tested on the touchstone of fairness and reasonableness. In the present case, the Municipal Corporation has issued notice to the appellant informing about the deviations made by the plaintiff in 14 GAC, J S.A.No.599 of 2013 constructing the building and furthermore, without obtaining any permission from the Municipal authorities, the plaintiff/appellant has constructed a shed over the 5th floor of the building. Even as per the guidelines, the Municipal Corporation has got the power of demolishing the structures, if they are not constructed as per the procedure laid down under the Act. It is an admitted fact that application was made by the plaintiff for regularization under the BRS subsequent to the notice issued by the Corporation.
21. Both the courts have given concurrent findings on facts. As no substantial question of law is involved in this case, the question of interfering with the judgments of the Courts below will not arise.
22. It is pertinent to mention that there is limited scope under Section 100 of CPC while dealing with the appeals by the High Courts. In a Second Appeal, if the High Court is satisfied that the case involves a substantial question of law, only then, this Court can interfere with the orders of the Courts below. On perusal of the entire material on record, this Court is of the considered view 15 GAC, J S.A.No.599 of 2013 that the orders of the Courts below are not perverse and there is no misreading of evidence, and therefore, in the absence of substantial question of law, it is not proper to interfere with the concurrent fact findings of the Courts below. Therefore, the Second Appeal deserves to be dismissed.
23. In the result, the Second Appeal is dismissed at the stage of admission, confirming the judgment dated 14.09.2012 in A.S.No.364 of 2011 on the file of X Additional Chief Judge (Fast Track Court), City Civil Court, Hyderabad. No order as to costs.
Pending miscellaneous applications, if any, shall stand closed.
________________________________ G.ANUPAMA CHAKRAVARTHY, J Date: 17.10.2022 ajr