Telangana High Court
Bharat Rashtra Samithi Brs vs The State Of Telangana on 14 August, 2024
Author: T. Vinod Kumar
Bench: T. Vinod Kumar
THE HON'BLE SRI JUSTICE T. VINOD KUMAR
WRIT PETITION No.22042 of 2024
ORDER:
This Writ Petition has been filed with the following prayer:
" ... Hon'ble Court may be pleased to issue a Writ order or direction more in the nature of Writ of Mandamus under Article 226 of the Constitution of India declaring the action of the Respondent NO.3, in rejecting the regularization of construction vide Proc in File No.007166/BP/NALG / 3048/0027/2024 dt.20-07-2024 on the file of Commissioner, Nalgonda Municipality as improper, arbitrary and against the principles of natural justice set aside the same and consequently direct the respondent No.3, authority to consider the application for regularizing the construction in land measuring Ac.1-00 gts in Sy.Nos.1498 & 1506 situated at Nalgonda village & Mandal, Nalgonda District in terms of the application made on 03-07-2024 and pass such other orders/s in the interest of justice."
2. Heard learned counsel for the petitioner, learned Government Pleader for Municipal Administration and Urban Development appearing on behalf of respondent No.1, learned Government Pleader for Revenue appearing on behalf of respondent No.2 and Sri B.Jagan Madhav Rao, learned Standing 2 Counsel appearing on behalf of respondent Nos.3 and 4, and perused the record.
3. Petitioner contends that it is a registered Political Party with Head Quarters at Hyderabad and office at District Head Quarters; that for carrying out its political activities and to reach out to every person in the District level, it had proposed to have a party office; and that one such party office was proposed at Nalgonda; and that in the year 2018, the Government of Telangana had issued G.O.Ms.No.167 Revenue (Assn-I) Department dated 16-08-2018 and G.O.Ms.No.66 Revenue (Assn-I) Department dated 21-06-2019 whereunder the land admeasuring Ac.1.00 in Sy.Nos.1498 and 1506 located at Nalgonda village was allotted in favour of the petitioner for construction of party office for a total consideration of Rs.4,84,000/-.
4. It is also the contention of the petitioner that upon issuance of the aforesaid G.Os. and payment of the amount specified thereunder being made, the Revenue Divisional Officer attached to the office of the 2nd respondent had conducted panchanama 3 and handed over possession of the land in the above mentioned survey numbers to the petitioner on 24-06-2019.
5. Petitioner further contends that on taking possession of the land, it had made construction of a permanent structure and a huge hall, which is temporary in nature.
6. Petitioner further contends that while undertaking the construction, it was informed that the required application for obtaining permission for construction would be processed by the Head Quarters and as such, the petitioner being the District Level Office did not make any application for construction.
7. It is the further contention of petitioner that however, due to communication gap, no application for obtaining permission was made either by the District Level Office or the Head Quarters at Hyderabad, and in the meantime, the construction undertaken was completed.
8. Petitioner further contends that due to changed political scenario in the State and the excerpts that have appeared in the News relating to the validity of the construction made, it had approached respondent Nos.2 and 3 and submitted an application 4 on 03-07-2024 seeking regularization of the construction i.e. structure made pursuant to the allotment of land under the above mentioned G.Os. by paying requisite fee.
9. Petitioner further contends that on the petitioner submitting the aforesaid application, the 4th respondent had inspected the premises and submitted a report to the effect that the structure on western side and northern side does not have required setbacks and recommended for rejection of the application.
10. Petitioner further contends that it is out of pure political vengeance and in spite of plenty of open space being available towards eastern side and the southern side totally being an open Government land, an objection was raised without appreciating that there is no likelihood of any damage or injury to any person, and thus, the rejection of application for regularization on the ground of not maintaining necessary setbacks is clearly vitiated and is liable to be set aside.
11. Petitioner further contends that consequent upon the 3rd respondent rejecting the regularization application made by it, the respondent authorities, by adopting a vindictive stand, are 5 threatening to demolish the structures raised by it without following due process of law and also opposed to principles of natural justice.
12. Per contra, learned Standing counsel appearing on behalf of respondent Nos.3 and 4 by drawing the attention of this Court to the rejection letter dated 20-07-2024 would firstly contend that petitioner had made application under the TG-bPASS Act, 2020 on 20-07-2024 seeking building permission for construction of building consisting of one cellar + 2 upper floors; that on the petitioner making the application under the TG-bPASS online process, the officials of the 3rd respondent have caused inspection on the same day and taking note of the fact that a building consisting of Ground + 2 upper floors is already existing and also that the said building is not as per Building Rules, had recommended for return of the application as unapproved; and that based on the said recommendation, the 3rd respondent authority had rejected the building permission, since building permission has been sought for in respect of an already existing building and is not intended for a proposed construction to be made therein.
6
13. Learned Standing counsel secondly, contends that as per the provisions of the Telangana Municipalities Act, 2019 (for short 'the Act'), no power akin to power under Section 455-A of the Greater Hyderabad Municipal Corporation Act, 1955 is vested with the Commissioner to regularize a construction made without obtaining permission, even if it is as per Building Rules notified vide G.O.Ms.No.168 dated 07-04-2012, and thus, no action can be taken by the respondent authorities on the representation submitted by the petitioner on 03-07-2024.
14. Learned Standing Counsel thus submits that since the building permission application submitted by petitioner in respect of an exiting building having been rejected, apprehending that the respondent authorities would take further action against the aforesaid construction made by the petitioner without obtaining any valid permission or sanction from the concerned authorities under the Act, the present Writ Petition is filed.
15. I have taken note of respective contentions urged.
16. While the petitioner contends of it being allotted land by the Government of Telangana, the issue involved in the present Writ 7 Petition is not related to the allotment of land, rather it is in relation to construction made on the land allotted.
17. It is to be seen that the petitioner by its own admission in the Writ affidavit, admit to the fact that no permission had been obtained by it for undertaking the construction due to communication gap.
18. If one takes note of the provisions of TG-bPASS Act, 2019, in particular Section 7(1) r/w Section 174 of the Act, it would be clear that no construction can be made without obtaining prior building permission from the authorities concerned. The petitioner having made construction without obtaining any permission or sanction from the authorities concerned, even though possessing valid title to the subject land, cannot make the structure raised by it therein as an authorized construction.
19. It may also not be out of place to mention that while the petitioner claims to have made construction under a wrong impression of the Party Head Quarters obtaining building permission, no material is placed before this Court at least to 8 establish that the constructed building having been assessed to tax by the respondent authorities, by which it can be said that the authorities taking cognizance of the construction made by assigning Door number. Though, mere assigning of Door number or assessment to Property Tax would not make the construction as authorized and legal, as the same is intended for enjoyment of various civic amenities like sewer, Road, lighting etc.
20. Though, petitioner claims to have made an application seeking regularization of the said construction by submitting an application on 03-07-2024, the same does not by itself confer any power on the 3rd respondent authority, in absence of any such power being conferred under the Act for regularizing the unauthorized and illegal construction made either by collecting penal fee or by compounding the same.
21. At this juncture, it is apt to refer to the decision of the Hon'ble Supreme Court rendered in M.I. Builders (P) Ltd Vs. Radhae Shyam Sahu 1 wherein, it has been held that a judicial 1 (1999) 6 SCC 464 9 review of a decision is permissible if the impugned action is against law or in violation of prescribed procedure or is unreasonable, irrational or mala fide. The Hon'ble Apex Court further held that the power of judicial review also extends in protecting the larger interests of the people and when it comes to ensuring constitutional governance by Rule of Law, and in such situations equities have no place. In the facts of the case, though petitioner pleads equities by claiming communication gap as the reason for not obtaining permission, the said reason would not make an otherwise unauthorized construction valid, merely because the petitioner is a political party serving people, while such other unauthorized/illegal constructions are dealt with under the Act.
22. Further, the Hon'ble Supreme Court in Mahendra Baburao Mahadik and Others Vs. Subhash Krishna Kanitkar and others2 while dealing with regularization of unauthorized construction, held that a statutory body was bound to exercise its powers only within the four corners of the statute. The relevant observations are as under:
2
(2005) 4 SCC 99 10 "40. The Municipal Council being a creature of statute was bound to carry out its functions within the four-
corners thereof. Being a statutory authority, it was required to follow the rules scrupulously. Concededly, the Municipal Council is not possessed of any statutory power to regularize unauthorized constructions. Its power is confined to compounding the offences in certain cases. Moreover, even development charges could not be recovered from the Appellant in respect of unauthorized constructions in terms of Section 124E(2) of the MRTP Act."
(emphasis supplied)
23. Further, the Hon'ble Supreme Court in Sanjay Adlakha Vs. State of Haryana and others 3 dealing with the construction made in deviation of statute, and regularization sought thereof, had held that the machinery of the State ought not to aid the economically and politically affluent people in violating the Town Planning Scheme. The relevant observations are as under:
"74. In the last four decades, almost all cities, big or small, have seen unplanned growth. In the 21st century, the menace of illegal and unauthorised constructions and encroachments has acquired monstrous proportions and everyone has been paying heavy price for the same. Economically affluent people and those having support of the political and executive apparatus of the State have constructed buildings, commercial complexes, multiplexes, malls, 3 (2011) 15 SCC387 11 etc. in blatant violation of the municipal and town planning laws, master plans, zonal development plans and even the sanctioned building plans. In most of the cases of illegal or unauthorised constructions, the officers of the municipal and other regulatory bodies turn blind eye either due to the influence of higher functionaries of the State or other extraneous reasons. Those who construct buildings in violation of the relevant statutory provisions, master plan, etc. and those who directly or indirectly abet such violations are totally unmindful of the grave consequences of their actions and/or omissions on the present as well as future generations of the country which will be forced to live in unplanned cities and urban areas. The people belonging to this class do not realise that the constructions made in violation of the relevant laws, master plan or zonal development plan or sanctioned building plan or the building is used for a purpose other than the one specified in the relevant statute or the master plan, etc., such constructions put unbearable burden on the public facilities/amenities like water, electricity, sewerage, etc. apart from creating chaos on the roads. The pollution caused due to traffic congestion affects the health of the road users. The pedestrians and people belonging to weaker sections of the society, who cannot afford the luxury of air-conditioned cars, are the worst victims of pollution. They suffer from skin diseases of different types, asthma, allergies and even more dreaded diseases like cancer. It can only be a matter of imagination how much the Government has to spend on the treatment of such persons and also for controlling pollution and adverse impact on the environment due to traffic congestion on the roads and chaotic conditions created due to illegal and unauthorised constructions. This Court has, from time to time, taken cognizance of buildings constructed in violation of municipal and other laws and emphasised that no compromise should be made with the town planning scheme and no relief should be given to the violator of the town planning scheme, etc. on the ground that he has spent substantial amount on construction of the buildings, etc.-- K. Ramadas Shenoy v. Town Municipal Council, Udipi, G.N. Khajuria (Dr.) v. DDA, M.I. Builders (P) Ltd. v. Radhey Shyam Sahu, Friends Colony Development Committee v. State of Orissa, M.C. Mehta v. Union of India and S.N. Chandrashekar v. State of Karnataka.
75. Unfortunately, despite repeated judgments by this Court and the High Courts, the builders and other affluent people engaged in 12 the construction activities, who have, over the years shown scant respect for regulatory mechanism envisaged in the municipal and other similar laws, as also the master plans, zonal development plans, sanctioned plans, etc., have received encouragement and support from the State apparatus. As and when the Courts have passed orders or the officers of local and other bodies have taken action for ensuring rigorous compliance with laws relating to planned development of the cities and urban areas and issued directions for demolition of the illegal/unauthorised constructions, those in power have come forward to protect the wrongdoers either by issuing administrative orders or enacting laws for regularisation of illegal and unauthorised constructions in the name of compassion and hardship. Such actions have done irreparable harm to the concept of planned development of the cities and urban areas. It is high time that the executive and political apparatus of the State take serious view of the menace of illegal and unauthorised constructions and stop their support to the lobbies of affluent class of builders and others, else even the rural areas of the country will soon witness similar chaotic conditions."
(emphasis supplied)
24. Though, the petitioner claims to have made construction on account of communication gap, it is not shown to this Court that the petitioner at any time prior to the alleged change of political scenario having realized the breach of the provisions of the Act committed by it and having taken any remedial steps by addressing the same, so as to ensure that the Act does not make any distinction between an extremely poor people and the economical affluent and politically influenced people, as had held by the Hon'ble Apex Court in Sanjay Adlakha's case. 13
25. Further, the Hon'ble Supreme Court echoing the view that the unauthorized and illegal constructions do not advance the aim of the State to ensure planned development, in Esha Ekta kta Apartments Co-operative Housing Society Ltd. and others Vs. Municipal Corporation of Mumbai and others 4 had rejected the case for directing the respondents to regularize the construction made in violation of sanctioned plan, observed as under:
"we would like to reiterate that no authority administering municipal laws and other similar laws can encourage violation of the sanctioned plan. The Courts are also expected to refrain from exercising equitable jurisdiction for regularization of illegal and unauthorized constructions else it would be encourage violators of the planning laws and destroy the very idea and concept of planned development of urban as well as rural areas".
(emphasis supplied)
26. In the facts of the case, admittedly the petitioner does not have any sanctioned plan at all for it to seek regularization of the construction made in deviation of sanction plan. 4 (2013) 5 SCC 357 14
27. Further, having regard to the law as enunciated by the Hon'ble Supreme Court and the Scheme of the Act read with Sub - Clause (d) of Clause 26 of the Building Rules, 2012 issued under G.O. M.S. No. 168 dated 07.04.2012, this Court is of the view that municipality can only compound a deviation up to 10 percent in the sanctioned plan, and does not have power to regularize an unauthorized constructed made without even applying for building permission before making such construction. Thus, merely because the petitioner is a political party, and claims of communication gap, no indulgence can be shown by allowing regularization of construction made without obtaining any permission in complete disregard of the Building laws.
28. On the contrary, the petitioner being a political party cannot claim the defence taken by a common man that they lacked awareness about the nuances of the law, more so, when the petitioner party itself spearheaded the enactments in question i.e., TG-bPASS Act, the Telangana Municipalities Act, 2019, during their tenure over the last decade. Thus, this Court is of the view that the petitioner herein cannot be permitted to either plead that 15 they were ignorant of the scheme of the Act, qua the obligations to be undertaken thereunder before commencement of construction or seeking regularization of the unauthorized construction as an exception to the rule in isolation of the populace at large.
29. Further, it is also to be noted that while the petitioner is claiming that its application dated 03-07-2024 made for regularization as having been rejected, no such proceeding is annexed to the Writ petition. On the other hand, the impugned proceeding is pursuant to an application for grant of building permission made under TG-bPASS online process in respect of an already existing building, which as noted above, cannot be considered.
30. If at all the petitioner is aggrieved by the aforesaid order of rejection if any passed, it could have availed the remedy provided under the respective enactments. Instead of adopting the aforesaid course of action, petitioner has filed present Writ Petition claiming as if the regularization application as having been rejected, which itself clearly shows that the petitioner is 16 lacking clarity as to which of the application filed by it is considered by the authorities.
31. In view of the above, this Court is of the considered view that the petitioner is not entitled for grant of any relief with regard to the impugned proceeding dated 20-07-2024 termed as "TG-bPASS Rejection Letter" passed by the 3rd respondent rejecting the application submitted online for grant of building permission in respect of an existing building. However, petitioner is at liberty to avail the remedies provided under the respective enactments against the impugned proceeding, if so advised.
32. Subject to above observations, the Writ Petition is disposed of. No costs.
33. As a sequel, miscellaneous petitions pending if any shall stand closed.
____________________ T. VINOD KUMAR, J Date: 14.08 .2024 Vsv