Sri Seth Ghasiram Gopikished ... vs Greater Hyderabad Municipal ...
2022 Latest Caselaw 5143 Tel

     HON'BLE SMT. JUSTICE G. ANUPAMA CHAKRAVARTHY

                SECOND APPEAL No.599 of 2013

JUDGMENT :

This Second Appeal is arising out of the judgment dated

14.09.2012 in A.S.No.364 of 2011 on the file of the X Additional

Chief Judge (Fast Track Court), City Civil Court, Hyderabad,

confirming the judgment and decree dated 03.11.2011, passed in

O.S.No.1572 of 2010 on the file of IV Junior Civil Judge, City

Civil Court, Hyderabad.

2. For the sake of convenience, the parties are referred to as

arrayed before the trial Court.

3. Heard learned Counsel for the appellant. None appeared on

behalf of the respondents/officials of Greater Hyderabad Municipal

Corporation. Perused the record.

4. The appellant is the plaintiff. The plaintiff filed the suit to

declare the notice dated 31.03.2010, issued under Section 452 of

the Hyderabad Municipal Corporation Act, as illegal, null and void

and also sought for grant of perpetual injunction restraining the

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defendant and all its subordinates from interfering or demolishing

the suit schedule property i.e. house bearing Municipal No.3-2-

848/1 to 11, admeasuring 2021 square yards with structures,

situated at Kachiguda, Hyderabad.

5. The case of the plaintiff is that the plaintiff-Society

purchased the plot admeasuring 1012 square yards out of premises

bearing Municipal No.3-2-848 under the registered sale deed dated

10.04.1970, bearing document No.1127/1970. The plaintiff-

Society also purchased a plot admeasuring 1009 square yards in

Municipal No.3-2-848, under another registered sale deed dated

10.04.1970 bearing document No.1128/1970. The total land under

both the documents is admeasuring 2021 square yards, which is the

suit schedule property. The plaintiff-Society is running educational

institutions, namely, Badruka College of Commerce, Badruka

College for Post Graduate Centre, Bankatlal Badruka College of

Information Technology, Badruka Institute of Professional Studies,

Badruka Junior College for Girls, Badruka Institute of Foreign

Trade, Badruka Institute of Foreign Education and Shri Laxmi

Nivas Badruka Vidyarthi Grih. It is the specific averment in the

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plaint that as the available space is not sufficient for the Society, it

had obtained permission from the defendants for construction of

cellar plus four upper floors, vide Permit No.154/48, dated

07.01.2008 and completed its construction. However, due to

paucity of funds, the plaintiff could not finish minor works, which

need not require permission under Rule 3.5 of Building bye-laws

and plaintiff commenced working in the said building.

6. It is the further case of the plaintiff that the defendants issued

notice dated 31.03.2010, under Section 452 of the Hyderabad

Municipal Corporation Act alleging that the plaintiff has deviated

from the sanctioned plan, by constructing extra floor. Prior to the

said notice, the defendant-officials visited the suit schedule

property and threatened to demolish the constructions so raised.

Therefore, the plaintiff got issued notice under Section 685 of

Hyderabad Municipal Corporation Act on 15.03.2010, but the

defendants, without considering the said notice, issued the above

said notice with false and incorrect allegations, for which, the

plaintiff submitted a reply notice dated 31.03.2010 informing that

for the deviation of structures in the suit property, they submitted

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an application under the scheme of regularization. It is the further

case of the plaintiff that the plaintiff has given consent for

acquiring the land by defendants for the purpose of road widening,

free of cost and as such the plaintiff would be entitled for

additional floor space index, and therefore, it gave 50 square yards

for gaining additional FSI by raising a shed, which is alleged as an

additional floor by the defendants, and therefore, prayed to declare

the notice issued by the Municipal Corporation of Hyderabad as

illegal, null and void.

7. On the other hand, the defendant-Corporation filed a detailed

written statement denying the material allegations made in the

plaint and contended that the suit is not maintainable either on law

or on facts and is liable to be dismissed for the reason that the

plaintiff failed to issue mandatory notice under Section 685 of the

Hyderabad Municipal Corporation Act, before filing the suit.

Further, the defendants admitted that the plaintiff made an

application for construction permission under Sections 428 to 433

of the Hyderabad Municipal Corporation Act and accordingly

permission was granted for cellar/stilt for parking plus 4 upper

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floors, but the plaintiff had made large deviations against the

sanctioned plan and violated the building bye-laws and zoning

regulations and that the plaintiff failed to intimate the defendants

before commencement of construction, as required under Section

440 of the Hyderabad Municipal Corporation Act and pointed out

the deviations made by the plaintiff as under:

Side Setbacks insisted in Setbacks maintained the sanctioned plan at the site Front open space 6.00 meters 3.00 meters Rear open space 5.30 meters 4.00 to 5.30 meters Side open space (E) 5.00 meters 5.00 meters Side open space (W) 9.40 meters 3.00 meters

Further, the plaintiff also constructed a shed on the 5th floor, which

is in violation of G.O.Ms.No.86, dated 03.03.2006, Zoning

Regulations, 1981 and Building Bye-laws. It is also denied by the

defendants that the officials of the Municipal Corporation visited

and threatened the plaintiff for demolition of the structures, and in

fact, their officials went only for inspection of the suit schedule

property and came to know about the deviations, and therefore,

prayed to dismiss the suit as devoid of merits.

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8. Basing on the pleadings, the trial Court has framed the

following issues for trial:

"1. Whether the plaintiff is entitled for declaration as prayed for ?

2. Whether the plaintiff is entitled for perpetual injunction as prayed for ?

3. Whether the plaintiff issued notice under Section 685 of the HMC Act before filing the suit ?

4. To what relief ?

9. During the course of trial, on behalf of the plaintiff, PW-1

was examined and Exs.A-1 to A-8 were marked. The defendants

reported no evidence.

10. On considering the oral and documentary evidence on

record, the trial Court has dismissed the suit with a specific finding

that the plaintiff has to prove his case on the strength of his own

evidence and issuance of notice under Section 685 of the

Hyderabad Municipal Corporation Act is helpful only for

maintainability of suit and further declined to grant injunction in

favour of plaintiff as the Court had come to an opinion that

Ex.A-5/notice was issued without any malafide intention by the

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Corporation, strictly as per the provisions of Hyderabad Municipal

Corporation Act, and concluded that the plaintiff is not entitled for

declaration of the notice as illegal, null and void and

consequentially, the relief for injunction was also rejected.

11. Being aggrieved by the judgment and decree of the IV Junior

Civil Judge, City Civil Court, Hyderabad in O.S.No.1572 of 2010,

the unsuccessful plaintiff has filed an appeal vide A.S.No.364 of

2011 on the file of X Additional Chief Judge, City Civil Court,

Hyderabad.

12. The first appellate Court, after hearing the rival contentions

of the parties and considering the material on record, has framed

the following point for consideration:

"Whether the decree and judgment of the trial Court in O.S.No.1572/2010, dated 03.11.2011 on the file of IV Junior Civil Judge, City Civil Court, Hyderabad suffer from any infirmity either on facts or on law and whether the same is liable to be set aside ?

13. On considering the contentions of the parties and material on

record, the first appellate Court has dismissed the appeal

confirming the judgment of the trial Court.

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14. Being aggrieved, this second appeal is filed by the plaintiff

raising the following substantial questions of law along with the

grounds of appeal:

"(1) Whether the constructions raised as alleged of extra floor are only Sun sheds for shade to the students for which no permission is required as per Building Bye Law 3.5 ?

(2) Whether the action of the respondent in issuing notice is malafide one ?

(3) Whether the notice is in consonance of Building Bye Law 3.5 ?

(4) Whether the notice dated 31/3/2010 issued under Section 452 of GHMC Act is legal without inspection under Section 451 of the GHMC Act ?

(5) Whether the Corporation is right in issuing a notice in a cyclostyle manner ?

(6) Whether the Corporation have complied with the provisions of the Act as envisaged by Full Bench of this Hon'ble Court in 3 Aces case ?"

15. It is contended by the learned counsel for the appellant that

the extra floor constructed is only of sun shed for shade for the

students, for which, no permission is required as per Building Bye

Law Rule 3.5 and as such, the notice is not in consonance with the

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said Bye law, and therefore, prayed to allow the appeal by setting

aside the judgments of both the Courts below.

16. This Second Appeal is of the year, 2013 and it underwent

numerous adjournments and is still at the admission stage. On

perusal of the entire record, it is evident that the suit is filed

seeking to declare the notice dated 31.03.2010 issued under Section

452 of the Hyderabad Municipal Corporation Act as illegal, null

and void and for restraining the Municipal authorities from

interfering or demolishing the structures in the suit schedule

property i.e., H.No.3-4-848/1-11 admeasuring 2021 square yards,

situated at Kachiguda, Hyderabad.

17. Admittedly, the Municipal authorities have issued

permission for construction of stilt for parking plus four upper

floors. On perusal of the notice issued by the respondents, it is

evident that the following deviations have been made by the

plaintiff with respect to mandatory open spaces :-

Side Setbacks insisted in Setbacks maintained the sanctioned plan at the site Front open space 6.00 meters 3.00 meters Rear open space 5.30 meters 4.00 to 5.30 meters

GAC, J S.A.No.599 of 2013

Side open space (E) 5.00 meters 5.00 meters Side open space (W) 9.40 meters 3.00 meters

Further, in addition to the said deviations, the plaintiff has

constructed a sun-shade shed on the 5th floor without obtaining

permission from the Municipal authorities.

18. It is the specific contention of the learned counsel for

appellant that as per Rule 3.5 of the Building Bye-Laws, no

permission is required for construction of a shed. For better

appreciation, it is relevant to extract Rule 3.5 of the Building Bye-

Laws, which reads as under :

"No application for building permission is necessary for the following deviations (See bye-law No.1.3.4) provided they do not violate any provision regarding general building requirements (See Section B), structural stability and fire safety requirements of the bye-laws.

a. Gardening b. White Washing c. Painting d. Plastering and patch work e. Re-flooring and f. Construction of sun-sheds not exceeding 1 meter on one's own land."

19. Admittedly, the above Rule specifies that permission is not

required for certain structures mentioned therein. But, in the

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present case, the plaintiff has constructed a shed on the 5th floor

without obtaining permission from the Municipal authorities.

As per Rule 3.5 (f) of Building Bye-Laws, no permission is

required for construction of Sun-shade shed not exceeding 1 meter

on one's own land, but in the present case, the plaintiff has

constructed the Sun-shade shed on the entire 5th floor in order to

accommodate the students for lunch. Therefore, the contention of

the plaintiff that permission is not required as per Rule 3.5 of the

Building Bye-Laws for construction of such sun-shed, cannot be

accepted.

20. Further, learned counsel for the appellant relied on the

judgment of the Andhra Pradesh High Court reported in 3 Aces,

Hyderabad v. Municipal Corporation of Hyderabad1 and

contended that the Municipal authorities cannot interfere with the

constructions, if they do not cause any public inconvenience. Their

Lordships, while dealing with the above said case, have framed

certain guidelines to be followed by the Municipal authorities in

respect of the illegal constructions and specifically held that the

1994 (3) ALT 73

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guidelines should not be treated as exhaustive but only illustrative

and the discretion to be exercised by the Corporation in any given

case should not be arbitrary or capricious. The relevant portion of

guidelines in the said judgment reads as follows :-

"1) In cases where applications having been duly filed in accordance with law, after fulfilling all requirements, seeking permission to construct buildings and permission was also granted by the Corporation, the power of demolition should be exercised by the Corporation only if the deviations made, during the construction are not in public interest or cause public nuisance or hazardous or dangerous to public safety including the residents therein. If the deviations of violations are minor, minimal or trivial which do not affect public at large, the Corporation will not resort to demolition.

2) Whatever is stated in guideline number (1) will also equally apply to the permissions deemed to have been granted under Section 437 of "The Act".

3) If no application has been filed seeking permission and the construction is made without any permission whatsoever, it is open to the Corporation to demolish and pull down or remove the said unauthorised structure in its discretion. Otherwise, having regard to the facts and circumstances of the case, it will be putting a premium on the unauthorised construction.

When the Corporation comes to the conclusion, keeping the above guidelines in view, that the

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construction in question is required to be demolished or pull down, it should follow the procedure indicated below:

(i) The demolition should not be resorted to during festival days declared by the State Government as public holidays excluding Sundays. If the festival day declared by the Government as a public holiday falls on a Sunday, on that Sunday also, the Corporation should not resort to demolition.

             (ii)    In any case, there should not be any
                     demolition after sun set and before sun
                     rise.

(iii) The Corporation should give notice of demolition as required by the statute fixing the date of demolition. Even on the said date, before actually resorting to the demolition, the Corporation should give reasonable time, depending upon the premises sought to be demolished, for the inmates to withdraw from the premises. If within the time given the inmates do not withdraw, the Corporation may proceed with actual demolition."

Admittedly, the above said guidelines are laid down in view of the

fact that the Corporation is a public authority and its action must be

tested on the touchstone of fairness and reasonableness. In the

present case, the Municipal Corporation has issued notice to the

appellant informing about the deviations made by the plaintiff in

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constructing the building and furthermore, without obtaining any

permission from the Municipal authorities, the plaintiff/appellant

has constructed a shed over the 5th floor of the building. Even

as per the guidelines, the Municipal Corporation has got the power

of demolishing the structures, if they are not constructed as per the

procedure laid down under the Act. It is an admitted fact that

application was made by the plaintiff for regularization under the

BRS subsequent to the notice issued by the Corporation.

21. Both the courts have given concurrent findings on facts.

As no substantial question of law is involved in this case, the

question of interfering with the judgments of the Courts below will

not arise.

22. It is pertinent to mention that there is limited scope under

Section 100 of CPC while dealing with the appeals by the High

Courts. In a Second Appeal, if the High Court is satisfied that the

case involves a substantial question of law, only then, this Court

can interfere with the orders of the Courts below. On perusal of

the entire material on record, this Court is of the considered view

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that the orders of the Courts below are not perverse and there is no

misreading of evidence, and therefore, in the absence of substantial

question of law, it is not proper to interfere with the concurrent fact

findings of the Courts below. Therefore, the Second Appeal

deserves to be dismissed.

23. In the result, the Second Appeal is dismissed at the stage of

admission, confirming the judgment dated 14.09.2012 in

A.S.No.364 of 2011 on the file of X Additional Chief Judge (Fast

Track Court), City Civil Court, Hyderabad. No order as to costs.

Pending miscellaneous applications, if any, shall stand

closed.

________________________________ G.ANUPAMA CHAKRAVARTHY, J Date: 17.10.2022

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