Smt. Nerella Divya vs The State Of Telangana And 3Others
2022 Latest Caselaw 5512 Tel

         THE HON'BLE THE CHIEF JUSTICE UJJAL BHUYAN
                                       AND
          THE HON'BLE SRI JUSTICE C.V.BHASKAR REDDY


                   WRIT APPEAL No.711 of 2022

JUDGMENT: (Per the Hon'ble the Chief Justice Ujjal Bhuyan)


       Heard       Mr.     P.Bhaskar,        learned         counsel   for   the

appellant;       Ms.     Borra       Lakshmi        Kanakavalli,       learned

Assistant Government Pleader for Housing, Municipal

Administration          and     Urban        Development         Department,

appearing for respondent No.1; Mr. S.Surender Reddy,

learned counsel appearing for respondents No.2 and 3; and

Mr. M.Ajay Kumar, learned counsel for respondent No.4.

2. This writ appeal is directed against the order dated

28.10.2022 passed by the learned Single Judge dismissing

W.P.No.39138 of 2022 filed by the appellant as the writ

petitioner.

3. The related writ petition was filed by the appellant

assailing the legality and validity of the order dated

14.10.2022 passed by respondent No.3 for demolition of

the scheduled premises bearing House No.1-8-552/1,

Balasamudram, Hanamkonda, Warangal District.

4. Appellant is the lessee of the scheduled premises

belonging to respondent No.4. There is a lease deed dated

07.07.2017 between the two. As per clause 8 of the lease

deed, the lessee is not entitled to make any alterations in

the scheduled premises without the written consent of the

lessor.

5. It appears that appellant had made construction in

the scheduled premises for the purpose of running her

restaurant business. This has led to filing of civil suit by

respondent No.4 against the appellant which is stated to be

pending. In the meanwhile, show cause notice was issued

by the Assistant City Planner to the appellant on

28.04.2022 on the ground that she has made alteration in

the scheduled premises as well as made further

construction thereon without the permission of the

municipal authorities. Thereafter, the impugned order

came to be passed for demolition of the alleged

unauthorised construction. It was at that stage that the

related writ petition came to be filed.

6. It was contended before the learned Single Judge that

appellant had made an application on 26.11.2016 on

behalf of respondent No.4 seeking construction permission

and also made the necessary payments. As the same was

not rejected, it would amount to deemed permission and on

the basis of such deemed permission, the construction was

carried out. Learned counsel for respondents No.2 and 3

submitted before the Court that nowhere it was stated that

appellant had made an application and carried out

construction under the provision of deemed permission.

On the other hand, learned counsel for respondent No.4

adverted to clause 8 of the lease deed and submitted that

lessee (appellant) was not entitled to carry out any

alternations in the scheduled premises, not to speak of

making any construction, without the written consent of

respondent No.4. He asserted before the learned Single

Judge that respondent No.4 did not file any application

before respondent No.2 seeking permission for

construction. Appellant being the lessee cannot apply to

respondent No.2 for permission for making alterations, not

to speak of making construction. In the course of hearing,

learned Single Judge had directed learned Standing

Counsel representing respondents No.2 and 3 to obtain

instruction regarding any application made by and on

behalf of respondent No.4 and the status as to deemed

permission. Learned Standing Counsel informed the Court

that the website of respondent No.2 was no longer in

operation and therefore respondent No.2 could not extract

any details from the website.

7. Learned Single Judge taking note of the fact that a

suit for eviction is pending between the parties and also

the assertion of respondent No.4 that she did not file any

application for construction permission, dismissed the writ

petition holding that there was no illegality in the

impugned order dated 14.10.2022.

8. The appeal was moved as a lunch motion on

29.10.2022 when we directed its listing today with a status

quo order.

9. After hearing learned counsel for the parties and on

due consideration, we are of the view that it would meet

the ends of justice if the matter is remanded back to

respondent No.3 to reconsider the rival stand of the

appellant as well as respondent No.4 and thereafter pass a

fresh order in accordance with law after giving due

opportunity of hearing to both the sides. To enable the

same, order dated 14.10.2022 is set aside. Let the above

exercise be carried out within a period of four weeks from

the date of receipt of a copy of this order.

10. Writ appeal is accordingly disposed of.

Miscellaneous applications pending, if any, shall

stand closed. However, there shall be no order as to costs.

______________________________________ UJJAL BHUYAN, CJ

______________________________________ C.V.BHASKAR REDDY, J 31.10.2022 vs