Sri. B.Anil vs The State Of Telangana And 7 Others
2022 Latest Caselaw 6355 Tel

     THE HON'BLE SMT. JUSTICE LALITHA KANNEGANTI

               WRIT PETITION No. 25508 OF 2018
                            AND
               WRIT PETITION No. 31472 OF 2021

COMMON ORDER:

W.P.No. 25508 of 2018

              This Writ Petition is filed seeking the following relief:

      "       to issue a writ of mandamus or any other appropriate
     writ or order or direction declaring the inaction of Respondent

Nos. 2 to 4 as arbitrary, illegal against the law, unconstitutional and contrary to the provisions of Greater Hyderabad Municipal Corporation Act, 1955 inter alia and consequently direct the respondent authorities to demolish the unauthorised and illegal construction made by Respondent No.5 and to pass such other or further orders as this Hon'ble Court may deem fit and proper under the circumstances of the case."

2. Learned counsel for the petitioner Ms. Katta Sravya

submits that when the petitioner is searching for suitable

premises through intermediaries, the 5th respondent

approached and offered him to lease out major portion of the 5th

floor at Diamond Towers to the extent of 2700 square feet.

Upon being impressed with the location and on the possibility of

running / providing educational and consulting services, they

have put-forth a requirement that the lease shall tentatively

commence from 15.12.2014 and the insured premises being

provided is fully functional and fit for use for business purpose.

Thereupon the petitioner and the 5th respondent negotiated and

took on lease the said premises under a registered lease

agreement on 28.11.2014 with the mutual terms referred

thereto. Thereafter, the 5th respondent collected Rs. 3 lacs as

deposit without interest by falsely misleading the petitioner

regarding the true nature of the status of the said leased

premises. Later, the 5th respondent failed to provide and hand

over the premises as per the commitment. The petitioner

incurred several lakhs towards improvements, infrastructure,

equipment, furniture and got it ready and thus had successfully

commenced the educational services. Learned counsel submits

that The 5th respondent used to visit the service centre to

oversee the improvements being done with the petitioner's

money and having observed the successful running of the

service centre, had cast an evil eye to join in the study centre

and solicited to admit him as a partner in the centre but the

said proposal was not accepted by the petitioner. Thereafter,

the 5th respondent started pressurising the petitioner to hand

over the premises with all infrastructure. The 5th respondent

has committed several offences and basing on a complaint,

Crime Nos. 380 of 2015, 834 of 2015, 602 of 2015 and 734 of

2015 were registered and as a counter blast to that, the 5th

respondent filed O.S.No. 1035 of 2015 and O.S.No. 907 of 2016

for eviction, arrears of rent and mesne profits. Thereafter, the

petitioner has filed O.S. No. 550 of 2016 for injunction and

obtained an ad interim injunction order on 31.05.2016. The 5th

respondent intentionally did not pay heed to the Court order by

indulging in acts and denied the petitioner the right to enjoy the

premises, by preventing the ingress and egress, removal of

access to bathrooms, disconnection of lift / elevator services,

disruption of water and parking facilities and allowing wild and

undomesticated animals onto the premises. The 5th respondent

also started running an illegal hookah bar above the said

premises which is meant for educational services and he has

gone to the extent of disconnecting the electricity and other

permanent utilities required for the premises. The petitioner

filed I.A.No. 240 of 2016 in O.S.No. 550 of 2016 for disobedience

of the orders of the Court. It is submitted that thereafter, the

petitioner has approached the respondent municipal

corporation, then he has come to know that the 5th respondent

is playing fraud upon the Courts as well as GHMC and in the

process, committed numerous transgressions of law especially

offences under IPC relating to forgery, false affidavits. When the

sanctioned plan was compared with certified copies obtained

from GHMC, it is apparent to the naked eye that the 5th floor

was added as if sanction was accorded to construct the 5th floor

also. He submits that as per the available court documents, the

5th respondent not only leased out a major portion of the 5th

floor to the petitioner but also entered into lease agreements

concerning the 5th floor with others and the petitioner has

approached the authority to take action against the said

unauthorised construction. It is submitted that as a direct and

proximate result of the inaction of Respondents 2 to 4, the

petitioner's fundamental rights have been infringed.

It is submitted that the Hon'ble Apex Court as early

as in 1955 had held that the building rules are enacted for the

benefit of public and public interest has to be understood and

interpreted in the light of the entire scheme, purpose and object

of the enactment. The hazard to the health and environment of

not only the persons residing in the illegal colonization area but

of the entire town as well as the provision and Scheme of the Act

has to be taken into consideration and the Courts were found to

have a duty to protect the public interest.

Learned counsel submits that a counter affidavit

has been filed on behalf of the 5th respondent stating that the

5th respondent has made construction under deemed

permission. He submits that there is no question of deemed

permission when the permission is either rejected or quashed

and by interpreting legal friction in the statute, another friction

cannot be created by the Court. It is submitted that the 5th

respondent has committed fraud by suppression of material

facts and the application for construction was never

accompanied by fees and the alleged deemed plan was invalid

and no permissions could have been granted contrary to the

master plan or the zonal development area. He submits that as

the said constructions are without any permission, the same

has to be demolished.

3. A counter-affidavit has been filed on behalf of the

5th respondent. Learned counsel Sri Meherchand Noori submits

that the petitioner has come up before this Court only to harass

the 5th respondent and it is a frivolous and vexatious litigation.

He submits that the petitioner has entered into lease agreement

with the 5th respondent. He submits that the 5th respondent is

the absolute owner and landlord of the premises 'Diamond

Tower' and the present lis is concerned with the 5th floor of the

said building. The lease commenced on 15.12.2014 on a

monthly rent of Rs.55,000/-. As per Clause (8) of the lease deed

dated 28.11.2014, if the lessee fails to pay rents for three

consecutive months, the owner is at liberty to terminate the

lease agreement by giving ten days notice in writing to the lessee

to pay the rent. It is submitted that the petitioner has

committed default of rents from 15.12.2014 to 15.12.2015 for a

period of 12 months which amounts to Rs.6,50,000/-. Though

several requests have been made, the petitioner failed to pay the

said amount. Then a legal notice was got issued on 31.08.2015

to the petitioner demanding him to pay the arrears of rent

within 15 days from the date of receipt of the notice. Notice was

received 'unclaimed' as the petitioner managed to return the

same. Learned counsel submits that the petitioner is enjoying

the premises without paying any rent from the date of inception

of tenancy, as such, the 5th respondent filed O.S.No. 1035 of

2015. He submits that the petitioner proposed a project of

franchise of M/s Eten Coaching and the petitioner induced the

5th respondent by false assurance of getting huge returns and

profits over the same. Believing the same, the 5th respondent

paid Rs.31,25,800/- to the petitioner and the petitioner has

already got franchise in his name. All that money which was

paid by the 5th respondent was diverted to the said franchise

offices at SR Nagar and RTC X Road. Learned counsel submits

that the 5th respondent has filed complaint against the

petitioner herein. He submits that the petitioner being a 3rd

party to the premises, has no right to question the nature of

construction or he cannot have a grievance with regard to the

sanctioned plan. Being a lessee / tenant, his concern is only

with regard to the lease agreement entered into between the

parties. The lease was terminated and he is squatting over the

property illegally with the help of interim orders obtained form

the Court by making false representations. He submits that as

far as construction of 5th floor is concerned, the 5th respondent

has made an Application on 10.10.2012 seeking permission for

construction of 5th floor. Once such an Application is made

under Section 428 of the Act, the Commissioner is bound to

either convey his approval or disapproval within thirty days, but

no such order was passed by the respondents. Under the

deemed permission, the petitioner has constructed the 5th floor

and completed the same. It is submitted that even if the same is

constructed without obtaining plan, the case of the 5th

respondent will fall within the four corners of Section 455-AA of

the Act. He submits that the 5th respondent has made an

Application seeking regularisation on 31.01.2016 duly paying

an amount of Rs.10,000/- by way of banker's cheque dated

22.12.2016. He submits that in the light of the orders passed in

public interest litigation, the said G.O. was suspended and the

petitioner is waiting for finalisation of the said proceedings. It is

submitted that in Sanjeev Bhatnagar v. Union of India1, the

Hon'ble Supreme Court imposed a monetary penalty against an

advocate for filing a frivolous and vexatious petition and the

same was dismissed labelling it as publicity interest litigation

and costs of Rs.10,000/- were imposed. Learned counsel also

relied on the judgments in Charan Lal Sahu v. Giani Zail

Singh2, Guruvayur Devaswom Managing Committee v. C.K.

Rajan3 and submitted that the petitioner could not make out

any case and the Writ Petition is liable to be dismissed.

4. No interim orders are passed in this Writ Petition

W.P.No. 31472 of 2021

This Writ Petition is filed by the very same petitioner in

Writ Petition No. 25508 of 2018 seeking the following relief:

" to issue writ or order or direction more particularly one in the nature of writ of mandamus to declare the inaction of Respondent Nos. 2 to 7 as arbitrary, illegal against the law, unconstitutional and contrary to the provisions of Greater Hyderabad Municipal Corporation Act, 1955 inter alia and consequently direct the respondent authorities to demolish the unauthorised and illegal construction made by Respondent No.8 and to pass such other or further orders as this Hon'ble Court may deem fit and proper under the circumstances of the case."

AIR 2005 SC 2841

AIR 1984 SC 309

(2003) 7 SCC 546

5. Smt. Sravya Katta, learned counsel for the

petitioner while reiterating the very same averments and

submissions as made in the earlier Writ Petition, submits that

when the 8th respondent has constructed illegal and

unauthorised multi-storied construction in the property,

without following the necessary Zonal regulations, maintaining

set backs, maintenance of requisite guidelines pertaining to

footpath and common area, encroached upon common public

lanes thereby making it difficult for the residents and

inhabitants to stay safely in the area, fire safety hazards. In

support of these violations made by the unofficial respondent,

the official respondents are not taking any steps to remove the

demolished illegal construction. The petitioner is made to run

from pillar to post, still no action has been initiated. He submits

that the said action on the part of the official respondents in

taking action on the unauthorised construction is highly

arbitrary. It is submitted that they gave a representation to the

GHMC as well as South Central Railway stating that the

construction is made by violating the norms of not maintaining

a minimum legal distance of 100 feet from the railway track in

Khairathabad. In spite of that, no action has been taken by the

Railways also.

6. A counter-affidavit has been filed on behalf of the

respondent municipal corporation wherein they have stated that

after receiving complaint from the petitioner, the 4th respondent

inspected the premises and found no fresh construction activity

in the 5th floor. On verifying the records, it is found that BRS

Application was filed seeking regularisation of the 5th floor

construction before the official respondents and the same is

pending due to pendency of public interest litigation. It is

submitted that permission is for ground+ three upper floors and

partly the 4th floor vide permit dated 30.08.2012. It is submitted

that the petitioner is not having any locus standi to file the

present petition against the 2nd respondent by invoking

extraordinary jurisdiction of this Court under Article 226 of the

Constitution of India. When they inspected the site, they found

that there is no construction activity on the 5th floor. The

Government issued G.O.Ms.Nos. 151 & 152 for regularisation of

unauthorised construction on the said scheme and on verifying

the records of the office, it is found that there is BRS

Application dated 31.01.2016 and in view of the interim orders

passed by the Division Bench, the said Applications are

pending. The petitioner and the unofficial respondent may be

having some internal disputes as far as the municipality is

concerned and they will take action against the unauthorised

and illegal construction as per the orders of this Court.

7. Learned Standing Counsel for Railways Ms. Anjali

Agarwal submits that the petitioner has not taken no objection

from the Railways. It is submitted that Railways is having right

to demolish the building. It is submitted that if the building is

constructed without maintaining a distance of 100 feet from the

track, they will take appropriate steps.

8. These two Writ Petitions are filed by the tenant

stating that the premises which is leased out to him is an

unauthorised construction and the same shall be removed by

the respondent Corporation. Before filing a complaint before the

respondent municipal corporation, both the petitioner as well as

the unofficial respondent have filed civil suits and criminal

cases and both of them are fighting tooth and nail. In this

backdrop, the petitioner has approached the respondent

corporation stating that the unofficial respondent has made

construction without obtaining permission and it has also been

stated that the unofficial respondent has manipulated or made

corrections in the plan. Several other grounds are raised and

several allegations are made against the unofficial respondent.

In turn, the unofficial respondent also made several allegations

against the petitioner. From the pleadings and from the case of

both the parties, on the face of it, it appears that the petitioner

with an intention to settle the disputes between the parties,

have approached this Court by filing these two writ petitions. As

the petitioner is not successful in the writ petition of 2018, he

has come up with the second writ petition.

9. A counter-affidavit has been filed stating that the

5th respondent has paid necessary fees and also made

representation seeking regularisation of the said structure and

in view of the interim orders passed in PIL, the official

respondents are not in a position to regularise the same. When

the 5th respondent's application is pending for regularisation, at

this stage, there cannot be any direction to the respondents to

demolish the structures or to take any action against the said

structures. The 5th respondent has to necessarily wait till

suitable orders are passed in the PIL.

10. Then coming to the contention of the learned

Standing Counsel for the Railways, according to them, there

shall not be any high-rise building adjacent to railway station as

per G.O.Ms.No. 168, dated 07.04.2012. Even under the BRS

Scheme also, the official respondents cannot regularise the

construction contrary to the Zonal regulations or guidelines

issued by the Central Government. If the construction is made

within 100 feet from the railway track, it would be dangerous.

11. Hence, these Writ petitions are disposed of by

directing the respondent Corporation to consider whether the

deviations that are made by the unofficial respondents are

permissible deviations under the Building Regularisation

Scheme, and if so, they shall wait for the orders to be passed by

the Division Bench in this regard and they shall not interfere

with the same. If the deviations are not permissible, the GHMC

shall take appropriate action, in accordance with law. The

Railways shall also look into the representations of the

petitioner and if the construction is within 100 feet from the

railway track or contrary to the guidelines issued by the Central

Government in this regard, they are at liberty to take

appropriate action in accordance with law. No order as to costs.

12. The Miscellaneous Applications, if any shall stand

automatically closed.

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LALITHA KANNEGANTI, J 02nd December 2022

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