T. Pradyumna Kumar Reddy vs The State Of Telangana
2021 Latest Caselaw 4599 Tel

        HONOURABLE SRI JUSTICE UJJAL BHUYAN
                        AND
     HONOURABLE DR.JUSTICE CHILLAKUR SUMALATHA

                               W.A.No.522 OF 2021

JUDGMENT: (Per Hon'ble Sri Justice Ujjal Bhuyan)

1.     This writ appeal is before us pursuant to the order dated

29.09.2021 passed by the first court.

2.     By filing this appeal, appellants have questioned the legality and

correctness of the order dated 29.09.2021 passed by the learned Single

Judge in W.P.No.24201 of 2021 along with the further prayer to

restrain respondent Nos.8 and 9 from converting, constructing and

running a commercial establishment in Plot No.373, Road No.10,

Jubilee Hills, Hyderabad.

3. The related writ petition has been filed by the two appellants

seeking the following reliefs:

(i) declare the action of the respondent No.2 in permitting the 8th and 9th respondents to use the plot bearing No.373, Jubilee Hills for commercial purposes i.e., for running a bar and restaurant contrary to the residential permission granted vide Permit No.1/C18/07304/2021 and File No.1/C18/04394/2021, as illegal, arbitrary and unconstitutional and consequently direct respondent No.2 and 3 to forthwith.

               (ii)    declare       the      residential      building         permit
                       vide    Permit       No.1/C18/07304/2021           and      File
                                                                          th
                       No.1/C18/04394/2021 granted to the 8                    and 9th

respondents by the 2nd respondent to be illegal, arbitrary and to have been passed without following the provisions of GHMC Act and consequently set aside the same.

(iii) declare the inaction of the respondent Nos.2 and 3 in not taking any action against the construction

activities being undertaken by the respondent Nos. 8 and 9 in total contravention of the building permit to be illegal and arbitrary.

(iv) declare the action of the respondent Nos.5 to 7 in accepting and processing the application for bar/ excise and/or granting the excise licence to the 8th and 9th respondents on a residential building permission, and also without considering the orders of this Hon'ble Court in W.P.No.26173 of 2009, as illegal, arbitrary and unconstitutional.

4. Learned counsel for the appellants has taken us to a Division

Bench order dated 04.12.2009 in W.P.No.26713 of 2009, whereby the

then respondent No.14 (late husband of respondent No.8 herein) was

restrained from using the premises owned and occupied by him for any

purpose other than for residential purpose. This was subsequently

modified on 01.09.2014 to the extent that respondent No.14 would be

entitled to put the premises to the use of treatment of customers

through ayurvedic or laser or similar activities, but such facility should

not create overnight stay of the customers. He has also drawn our

attention to an order passed by a learned Single Judge of this court on

23.04.2021 in W.P.No.10689 of 2021, where present respondent No.9

was arrayed as respondent No.6. By that order, official respondents

were directed to inspect the premises in question and if the allegation

made by the present appellants, who are the petitioners therein, that the

premises were used for purposes other than residential were found to

be correct, then to stop constructions undertaken by respondent No.6.

5. On the apprehension that respondent No.9 has obtained licence

to start bar-cum-café in the premises, the related writ petition came to

be filed.

6. By order dated 29.09.2021 in W.P.No.24201 of 2021, notice was

issued before admission. Learned Single Judge recorded the

submission of learned Government Pleader for Prohibition and Excise

that no licence in favour of the 9th respondent has been issued.

However, learned Single Judge directed respondent Nos.2 and 3 to

consider the representation filed by the appellants against the

apprehended action of respondent No.9 and thereafter to pass

appropriate orders. The aforesaid portion of the order dated

29.09.2021 reads as under:

"In the light of the above submission, the second and third respondents are directed to consider the representation dated 05.07.2021 and pass appropriate orders in accordance with law by putting the petitioners and the eight and ninth respondents on notice and affording them an opportunity of hearing. They shall communicate the said order to the petitioners herein and shall file copy of the said order along with the counter".

7. Learned counsel for the appellants submits that there are two

judicial orders staring on the face. Therefore, learned Single Judge

ought not to have directed respondent Nos.2 and 3 to consider the

representation of the appellants, thereby allowing the said respondents

to sit in judgment over judicial orders. This should not be permitted.

He further submits that the moot question arising in this appeal and the

related writ petition is whether a bar should be permitted to be opened

in a residential premises.

8. On a query by the court that the above direction was issued by

the learned Single Judge on the writ petition filed by the appellants

themselves and that the appellants could very well have submitted

before the court that they did not want such interim order, learned

counsel for the appellants submits that while the aforesaid portion of

the impugned order may be set aside, the appellate court may further

direct that till the hearing and disposal of the writ petition, status quo as

on today should be maintained.

9. Learned Government Pleader for Prohibition and Excise appears

for respondent Nos.5 to 7.

10. Learned Senior Counsel for respondent Nos.8 and 9 submits that

as on date, respondent Nos.8 and 9 are constructing the premises as per

the approved building plan of Greater Hyderabad Municipal

Corporation. Question of conversion from residential to commercial

purpose would arise at a later date on application filed by respondent

Nos.8 and 9. As on date, that question may not arise. Respondent

Nos.8 and 9 cannot be injuncted from constructing the premises as per

the above approved plan. He, however, submits that the entire road in

front of the premises has now been declared as a commercial area by

the municipal authority vide GO dated 03.07.2021.

11. We have heard learned counsel for the parties.

12. Short point for consideration is whether the learned Single Judge

was justified in issuing the above interim direction as extracted supra

while issuing notice vide order dated 29.09.2021.

13. As we had already pointed out to learned counsel for the

appellants, the related writ petition is at the instance of the appellants

themselves. If the appellants did not want such an interim direction,

they could have very well pointed out before the learned Single judge

that they did not want such interim direction.

14. In any view, since the matter is before us in appeal and since the

appellants themselves are aggrieved by the impugned direction,

we set aside the above portion of the order dated 29.09.2021 as

extracted above. However, we make it clear that we have not

expressed any opinion on merit and all contentions are kept open.

Moreover, as prayed for by learned counsel for the appellants, we

request learned Single Judge for an expeditious hearing of

W.P.No.24201 of 2021.

15. With the above direction, writ appeal is disposed of.

16. Miscellaneous applications, if any pending, shall stand closed.

17. No costs.

_____________________ UJJAL BHUYAN, J

__________________________________ DR.CHILLAKUR SUMALATHA, J

Date: 27.12.2021 Lrkm