Davinder Singh, Hyderabad ... vs The Greater Hyderabad, Hyd 2 ...
2021 Latest Caselaw 4283 Tel

 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

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.

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

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