Telangana High Court
Boorla Sandeep Kumar, vs The State Of Telangana, on 20 March, 2024
Author: T. Vinod Kumar
Bench: T. Vinod Kumar
THE HON'BLE SRI JUSTICE T. VINOD KUMAR
Writ Petition No.7242 of 2024
ORDER:
This Writ Petition is filed to declare the action of respondents 2 to 5 in not taking action on the illegal and unauthorized construction made by the 6th respondent in the setback area in deviation of the sanctioned plan, in Plot Nos.33 and 34 (H.Nos.12-8-85/33 and 12-8-85/34) in Sy.Nos.918/A/2 and 918/1A admeasuring 668 square yards situated at Kaithalapur, Kukatpally Village and Mandal, Medchal-Malkajgiri District, pursuant to the petitioners' representations dt.12.02.2024 and 11.03.2024, as being illegal, arbitrary, unjust and in violation of Articles 14 and 300-A of the Constitution of India and also contrary to the provisions of the Greater Hyderabad Municipal Corporation Act, 1955 and the TS- bPASS Act, 2020.
2. Heard learned counsel for the petitioners, learned Government Pleader for Municipal Administration and Urban Development appearing for respondent No.1 and Sri M.Dhananjay Reddy, learned Standing Counsel, appearing for respondent Nos.2 to 5 and with the consent of the learned counsel appearing for the parties, the Writ Petition is taken up for hearing and disposal at the admission stage.
3. Having regard to the manner of disposal of the Writ Petition at the admission stage and the lis involved in this Writ Petition, this Court is of 2 the view that notice to unofficial respondent No.6 is not necessary for adjudication of the present Writ Petition.
4. Petitioners contend that they are the residents of an apartment, viz., 'S.R.Garuda Apartments', consisting of Cellar + Stilt + 5 upper floors; and that the 6th respondent, who purchased open Plot Nos.33 and 34 in Sy.Nos.918/A/2 and 918/1A admeasuring 668 square yards situated at Kaithalapur, Kukatpally Village and Mandal, Medchal-Malkajgiri District, had taken up construction in the aforesaid plots purportedly claiming to have obtained building permission from the respondents-authorities.
5. Petitioners further contend that the 6th respondent is proceeding with the construction in the aforesaid plots, which are adjacent to the petitioners' apartment, in deviation of the sanctioned plan without leaving prescribed setbacks as per G.O.Ms.No.168 dt.07.04.2012 in a hasty manner.
6. Petitioners further contend that on noticing the aforesaid construction being made by the 6th respondent in violation of the building rules, the petitioners had approached the respondents-authorities and submitted representations dt.12.02.2024 and 11.03.2024 bringing to the notice of the authorities of the said unauthorized construction and sought for action against the construction being proceeded with to bring the building in conformity with the sanctioned plan.
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7. Petitioners further contend that in spite of the petitioners approaching the respondents-authorities and submitting representations, no action is taken, and on the other hand, the unofficial respondent is proceeding with the construction in deviation of the sanctioned plan rapidly, and if permitted the same to go on, it would severely affect the rights of the petitioners to free air and light, being the neighbours of the subject property.
8. Per contra, learned Standing Counsel appearing on behalf of respondent Nos.2 to 5 submits that the 6th respondent had obtained building permission, vide permit order dt.08.12.2023 for construction of stilt for parking + 5 upper floors; and that the authorities, while granting permission, have specified the setbacks that are required to be maintained by the 6th respondent, while proceeding with the construction.
9. Learned Standing Counsel further submits that on receiving the complaint from the 2nd petitioner dt.12.02.2024, the respondents- authorities have caused inspection of the subject site and issued a show cause notice dt.17.02.2024, whereby, while directing the 6th respondent to stop the construction activity, called upon him to submit his explanation along with documentary evidence within a period of seven days.
10. Learned Standing Counsel further submits that though the unofficial respondent had received the aforesaid notice, did not submit any 4 reply/explanation, and thus, the respondents-authorities had passed a Speaking Order dt.26.02.2024 holding the said construction being made by the 6th respondent to be an unauthorized construction and directed him to remove the same within 15 days, failing with, the 6th respondent was informed that the authorities would take action to remove the same departmentally.
11. Learned Standing Counsel further submits that on the respondents-authorities passing the aforesaid Speaking Order, the unofficial respondent had approached the Court of Civil jurisdiction and filed a suit, vide O.S.No.111 of 2024 on the file of IV Additional Junior Civil Judge-cum-XV Additional Metropolitan Magistrate, Medchal-Malkajgiri District at Kukatpally, and obtained an order of status quo against the respondents-authorities, vide order dt.27.02.2024 passed in I.A.No.27 of 2024 in O.S.No.111 of 2024; and that presently the suit stands posted to 22.03.2024.
12. Learned Standing Counsel further submits that it is on account of the order of status quo, that has been granted by the concerned Civil Court, the authorities could not take steps to enforce the Speaking Order dt.26.02.2024; and that the respondents-authorities are taking steps to get the order of status quo vacated through Standing Counsel appearing before the concerned Court and on the aforesaid order of status quo 5 getting vacated, the authorities would take steps to enforce the Speaking Order already passed.
13. I have taken note of the respective contentions urged.
14. Having regard to the submissions made as above, and since, the respondents-authorities were prevented from enforcing the order Speaking Order dt.26.02.2024, on account of the order of status quo dt.27.02.2024 granted in I.A.No.27 of 2024 in O.S.No.111 of 2024 by the Court of Civil jurisdiction, this Court is of the view that the respondents- authorities cannot be said to be not acting upon the complaint submitted by the petitioners with regard to the unauthorized and illegal construction.
15. However, having regard to the fact that a Division Bench of this Court in M unicipal Corporation of Hyderabad v/ s. Philom ena Education Foundation 1 , had held that an order of status quo should not be granted in respect of statutory notices, and the said judgment is reiterated by the High Court by issuing Office Order, vide Circular dt.20.02.2017 in ROC.No.7/Reg.Judl/2017, which was yet again reiterated in Circular dt.08.11.2023 in ROC.No.14/Reg.Judl/2023, this Court is of the view that the respondents-authorities are to be directed to bring the aforesaid judgment and the circulars to the notice of the concerned Civil 1 2008 (2) ALD 1 6 Court to get the order of status quo vacated. Further, it is to be noted that on the aforesaid order of status quo being vacated by the concerned Civil Court, the respondents-authorities shall take steps to enforce the Speaking Order dt.26.02.2024 in an expeditious manner. Liberty is also granted to the petitioners to implead themselves in the aforesaid suit pending before the concerned Civil Court and get the order of status quo vacated by bringing the above judgment and circulars to the notice of the concerned Court.
16. Subject to above observation and liberty reserved, the Writ Petition is disposed of. No order as to costs.
17. Miscellaneous petitions, if any, pending in this writ petition shall stand closed.
___________________ T. VINOD KUMAR, J Date:20.03.2024 GJ