Praveen Kumar vs The State Of Telangana
2023 Latest Caselaw 3094 Tel

            THE HON'BLE SRI JUSTICE T. VINOD KUMAR

                     Writ Petition No.28640 of 2023

ORDER:

This Writ Petition is filed for issuance of Writ of Mandamus

declaring the action of the respondents in trespassing into the

residential premises on 08.10.2023, without having a final order

under Section 452(3) of the Greater Hyderabad Municipal

Corporation Act, 1955 (for short 'the Act') for demolition of the

deviations of the Building permit issued for residential building in

150 sq. yards bearing House No.15-25-697 situated in Plot

No.697/MIG-II, South Side, KPHB Colony, Kukatpally, Hyderabad, as

being illegal, arbitrary, violative of Articles 14, 19 & 21 of the

Constitution of India and consequently to direct the respondents to

follow the procedure contemplated under Section 452 of the Act.

2. Heard learned counsel for the petitioner, learned Government

Pleader for Municipal Administration & Urban Development

Department appearing on behalf of respondent No.1, Sri M.

Dhanunjay Reddy, learned Standing Counsel appearing on behalf of

respondents No.2 to 4, and with their consent the Writ Petition is

taken up for hearing and disposal at the stage of admission.

3. Petitioner contends that he had obtained building permission

for construction of G + 2 Floors in 150 Sq. Yards with 800+ sq. feet of

plinth area and got the building constructed and completed the same

within a period of one year and was in occupation of the same.

4. Petitioner further contends that the respondents-authorities

issued a show-cause notice under Section 452(1) & 461(1) of the Act

on 07.12.2020 calling upon the petitioner to stop the work forthwith

and submit a reply within (7) days; that the petitioner had submitted

a reply thereto on 14.12.2020; that not being satisfied with the said

explanation the respondents have issued notice under Section 452(2)

of the Act on 17.12.2020 calling upon the petitioner to submit

explanation within (3) days of receiving the said notice, as to why the

building or work of such portion of the work as mentioned in the said

notice should not be removed; and that the petitioner had submitted

an explanation/objection to the said notice on 23.12.2020, whereby

the petitioner had made a request to the authorities to consider for

regularization of the construction of 3rd, 4th and 5th floors made by

the petitioner in deviation of the sanctioned plan.

5. It is the further contention of the petitioner that even after the

petitioner submitted his explanation to the show-cause notice,

dt.17.12.2020, no order under Section 452(3) of the Act is passed,

and the respondents-authorities have issued proceeding

dt.09.09.2021 termed as 'intimation', to which the petitioner had

submitted an explanation on 14.09.2021 seeking regularization, and

without there being any order under Section 452(3) of the Act

rejecting his request for regularization, the authorities cannot resort

to demolition.

6. It is further contended that if only the authorities had passed

an order under Section 452(3) of the Act the petitioner could avail the

remedy of appeal provided under the Act.

7. Petitioner further contends that aggrieved by the non-

consideration of the explanation dated 14.09.2022 to the

communication termed as 'Intimation', the petitioner had approached

this Court by filing writ petition viz., WP.No.23083 of 2021, and the

same is pending consideration. It is also contended that during the

pendency of the Writ Petition all of a sudden on 08.10.2023, the

respondents-authorities came to the petitioner's property by

trespassing and commenced demolition of 3rd to 5th floors of the

building, which is contended as highly illegal, arbitrary and in

violation of Article 14, 19 and 21 of the Constitution of India.

8. Per contra, learned Standing Counsel appearing for

respondents No.2 to 4, by drawing the attention of this Court to the

proceedings, dt.09.09.2021, would submit that initially the

Respondent had issued notice dated 07.12.2020, to which the

petitioner submitted his explanation by letter dt.14.12.2020. It is

further submitted that having found the explanation submitted to the

authorities unsatisfactory, they have issued a notice dated

17.12.2020 under Section 452(2) of the Act to which the petitioner

had submitted a reply dt.23.12.2020. The Respondent authorities on

consideration of the said reply have passed the order dt.09.09.2021.

The said order has been served on the petitioner on 09.09.2021 at

7.05 p.m., as is evident from the endorsement made on the said order

as annexed to the Writ Petition, and thus the contention of the

petitioner that no order has been passed on the notice dt.17.12.2020

is a self-serving statement.

9. Further, Learned Standing Counsel by drawing attention of this

Court to the order dt.09.09.2021, would submit that the request of

the petitioner seeking regularization was also rejected by the said

order and the petitioner was directed to pull down/demolish the

unauthorized structures constructed as against the sanctioned plan

by making additional three floors, i.e., 3rd, 4th and 5th floors within (7)

days, failing which the authorities would initiate action as per the

provisions of the Act; that if the petitioner was aggrieved by the said

order, he ought to have questioned the said proceeding; and that the

representation dated 14.09.2021 filed by the petitioner against the

proceeding dated 09.09.2021 cannot be looked into by the authorities

after passing the order. Learned Standing Counsel further submits

that as no order has been passed by this Hon'ble Court in the Writ

Petition No.23083 of 2021, the respondents have taken further action

in pursuance of the proceeding dated 09.09.2021 is strictly in

accordance with law.

10. I have taken note of the respective contentions urged.

11. The fulcrum of the petitioner's contention is that no order has

been passed under Section 452(3) of the Act, against which the

petitioner would have availed a remedy of appeal under Section

452(5) of the Act exercising his right of appeal conferred to him under

the Act, and that in the absence of any order being passed, the

petitioner could not have resorted to demolition of the petitioner's

house.

12. However, a perusal of the order dt.09.09.2021 indicates that

the respondents-authorities have passed an order termed as

'Intimation' after issuing a notice dt.17.12.2020 after considering the

explanation submitted thereto by the petitioner on 23.12.2020.

Thus, the claim of the petitioner in the present Writ Petition that no

order is passed under Section 452(3) of the Act on the notice

dt.17.12.2020 issued under Section 452(2) of the Act, cannot be

accepted as a valid claim.

13. Admittedly, there is no challenge to the proceedings

dt.09.09.2021 and thus the said order had attained finality. In the

absence of any challenge to the order dt.09.09.2021, filing of the

present Writ Petition after the respondents-authorities have initiated

action to implement the said order dt.09.09.2021 on the ground that

the authorities cannot proceed with the demolition of structures

without passing an order pursuant to the issue of notice

dt.17.12.2020, in the considered view of this Court is an incorrect

and wrong statement being made by the petitioner before this Court.

14. That apart, though it was sought to be contended by the

learned counsel for the petitioner that the act confers powers on the

Commissioner to regularize an unauthorized construction in exercise

of powers under Section 455A of the Act, it is to be noted that though

the said provision confers power on the Commissioner to regularize a

deviation made to the sanctioned plan, the same is circumscribed by

usage of the word 'may' which indicates that the said exercise of

power is discretionary and cannot be sought to be invoked as a right.

Further, the commissioner who is a creature under the statue has to

act within the powers conferred on him by the Act. In other words by

the mere usage of the word 'may' it cannot be assumed that the

authority is conferred with unfettered and unbridled powers for

regularizing constructions made in violation of the provisions of the

Act and the norms prescribed under the building regulations. On a

similar submission being made, the Supreme Court in Dipak Kumar

Mukherjee Vs. Kolkata Municipal Corporation and Ors 1, dealing

with an analogous provision of the Kolkata Municipal Corporation

Act, 1980 held that the Municipal Commissioner in exercise of his

discretionary powers conferred under Rule 25(3) therein can only

regularise such deviations which fall within the provisions of the Act.

(2013)5SCC353

Thus, the claim of the petitioner that a power is vested with the

Commissioner to regularize any deviations made, in the view of this

Court is a farfetched imagination as the Commissioner can only act

within the parameters of the Act and not beyond that.

15. Further, the Apex Court has time and again discouraged the

practice of regularizing deviations made in sanctioned plans. The

Supreme Court in Seema Arshad Zaheer and Ors. Vs. Municipal

Corpn. of Greater Mumbai and Ors 2, has held that unauthorized

constructions cannot be compounded. The relevant observations are

as under:

"30. It is true that in cases relating to orders for demolition of buildings, irreparable loss may occur if the structure is demolished even before trial, and an opportunity to establish by evidence that the structure was authorised and not illegal. In such cases, where prima facie case is made out, the balance of convenience automatically tilts in favour of the Plaintiff and a Plaintiffs injunction will be issued to preserve status quo. But where the Plaintiffs do not make out a prima facie case for grant of an injunction and the documents produced clearly show that the structures are unauthorised, the court may not grant a temporary injunction merely on the ground of sympathy or hardship. To grant a temporary injunction, where the structure is clearly unauthorised and the final order passed by the Commissioner (of the Corporation) after considering the entire material directing demolition, is not shown to suffer from any infirmity, would be encourage and perpetuate an illegality We may refer to the following observations of this Court in M.I. Builders (P) Ltd. v. Radhey Shyam Sahu (MANU/SC/0999/1999 : (1999) 6 SCC 464) made in a different context: (SCC p.529, para 73) This Court in numerous decisions has held that no consideration should be shown to the builder or any other person where construction is unauthorised. This dicta is now almost bordering the rule of law. Stress was laid by the Appellant and the prospective allottees of the shops to exercise judicial discretion in moulding the relief. Such a discretion cannot be exercised which encourages illegality or perpetuates an illegality. Unauthorised construction, if it is illegal and cannot be compounded, has to be demolished. There is no way out. Judicial discretion cannot be guided by expediency. Courts are not free from statutory fetters. Justice is to be rendered in accordance with law. Judges are not entitled to exercise discretion wearing the robes of judicial discretion and pass orders based solely on their personal

(2006)5SCC282

predilections and peculiar dispositions. Judicial discretion wherever it is required to be exercised has to be in accordance with law and set legal principles."

16. The Supreme Court had reiterated this principle in Shanti

Sports Club and Ors. Vs.Union of India (UOI) and Ors 3, holding

that the Town Planning Scheme should not be compromised and a

violator of the Town Planning Scheme is not entitled to any relief. The

relevant observations are as under:

"52. Before concluding, we consider it necessary to enter a caveat. In all developed countries, great emphasis has been laid on the planned development of cities and urban areas. The object of planned development has been achieved by rigorous enforcement of master plans prepared after careful study of complex issues, scientific research and rationalisation of laws. The people of those countries have greatly contributed to the concept of planned development of cities by strictly adhering to the planning laws, the master plan etc. They respect the laws enacted by the legislature for regulating planned development of the cities and seldom there is a complaint of violation of master plan etc. in the construction of buildings, residential, institutional or commercial.

In contrast, scenario in the developing countries like ours is substantially different. Though, the competent legislatures have, from time to time, enacted laws for ensuring planned development of the cities and urban areas, enforcement thereof has been extremely poor and the people have violated the master plans, zoning plans and building regulations and bye-laws with impunity. In last four decades, almost all cities, big or small, have seen unplanned growth. In the 21st century, the menace of illegal and unauthorized constructions and encroachments has acquired monstrous proportions and everyone has been paying heavy price for the same. Economically affluent people and those having support of the political and executive apparatus of the State have constructed buildings, commercial complexes, multiplexes, malls etc. in blatant violation of the municipal and town planning laws, master plans, zonal development plans and even the sanctioned building plans. In most of the cases of illegal or unauthorized constructions, the officers of the municipal and other regulatory bodies turn blind eye either due to the influence of higher functionaries of the State or other extraneous reasons. Those who construct buildings in violation of the relevant statutory provisions, master plan etc. and those who directly or indirectly abet such violations are totally unmindful of the grave consequences of their actions and/or omissions on the present as well as future generations of the country which will be forced to live in unplanned cities and urban areas. The people belonging to this class do not realize that the constructions made in violation of the relevant laws, master plan or zonal development plan or sanctioned building plan or the building is used for a

(2009)15SCC705

purpose other than the one specified in the relevant statute or the master plan etc., such constructions put unbearable burden on the public facilities/amenities like water, electricity, sewerage etc. apart from creating chaos on the roads. The pollution caused due to traffic congestion affects the health of the road users. The pedestrians and people belonging to weaker sections of the society, who cannot afford the luxury of air- conditioned cars, are the worst victims of pollution. They suffer from skin diseases of different types, asthma, allergies and even more dreaded diseases like cancer. It can only be a matter of imagination how much the government has to spend on the treatment of such persons and also for controlling pollution and adverse impact on the environment due to traffic congestion on the roads and chaotic conditions created due to illegal and unauthorized constructions. This Court has, from time to time, taken cognizance of buildings constructed in violation of municipal and other laws and emphasized that no compromise should be made with the town planning scheme and no relief should be given to the violator of the town planning scheme etc. on the ground that he has spent substantial amount on construction of the buildings etc. - K. Ramdas Shenoy v. Chief Officers, Town Municipal Council, UdipiMANU/SC/0082/1974 : 1974 (2) SCC 506;Dr. G.N. Khajuria v. Delhi Development Authority MANU/SC/0064/1996 : 1995 (5) SCC 762;M.I. Builders Pvt. Ltd. v. Radhey Shyam Sahu MANU/SC/0999/1999 : 1999 (6) SCC 464;Friends Colony Development Committee v. State of Orissa MANU/SC/0933/2004 : 2004 (8) SCC 733;M.C. Mehta v. Union of India MANU/SC/8028/2006 : 2006 (3) SCC 399 andS.N. Chandrasekhar v. State of Karnataka MANU/SC/8005/2006 : 2006 (3) SCC 208.

53. Unfortunately, despite repeated judgments by the this Court and High Courts, the builders and other affluent people engaged in the construction activities, who have, over the years shown scant respect for regulatory mechanism envisaged in the municipal and other similar laws, as also the master plans, zonal development plans, sanctioned plans etc., have received encouragement and support from the State apparatus. As and when the courts have passed orders or the officers of local and other bodies have taken action for ensuring rigorous compliance of laws relating to planned development of the cities and urban areas and issued directions for demolition of the illegal/unauthorized constructions, those in power have come forward to protect the wrong doers either by issuing administrative orders or enacting laws for regularization of illegal and unauthorized constructions in the name of compassion and hardship. Such actions have done irreparable harm to the concept of planned development of the cities and urban areas. It is high time that the executive and political apparatus of the State take serious view of the menace of illegal and unauthorized constructions and stop their support to the lobbies of affluent class of builders and others, else even the rural areas of the country will soon witness similar chaotic conditions."

Echoing the above said principle the Supreme Court in Sanjay

Adlakha Vs. State of Haryana and Ors 4, rejected the request for

(2011)15SCC387

regularization of unauthorized construction made to a residential

building.

17. The Supreme Court in Esha Ekta Apartments Co-operative

Housing Society Ltd. and Ors. Vs. Municipal Corporation of

Mumbai and Ors 5, while expressing displeasure with the practice of

regularizing unauthorized constructions held that deviations made

deliberately do not deserve to condoned and compounded. The

relevant observations are as under:

"1...Though the municipal laws permit deviations from sanctioned constructions being regularised by compounding but that is by way of exception. Unfortunately, the exception, with the lapse of time and frequent exercise of the discretionary power conferred by such exception, has become the rule. Only such deviations deserve to be condoned as are bona fide or are attributable to some misunderstanding or are such deviations as where the benefit gained by demolition would be far less than the disadvantage suffered. Other than these, deliberate deviations do not deserve to be condoned and compounded. Compounding of deviations ought to be kept at a bare minimum....

...

45. In view of the above discussion, we hold that the Petitioners in the transferred case have failed to make out a case for directing the Respondents to regularize the construction made in violation of the sanctioned plan. Rather, the ratio of the above- noted judgments and, in particular, Royal Paradise Hotel (P) Ltd. v. State of Haryana and Ors. (supra) is clearly attracted in the present case. We would like to reiterate that no authority administering municipal laws and other similar laws can encourage violation of the sanctioned plan. The Courts are also expected to refrain from exercising equitable jurisdiction for regularization of illegal and unauthorized constructions else it would encourage violators of the planning laws and destroy the very idea and concept of planned development of urban as well as rural areas."

18. In a recent judgment, the Division Bench of this Court in

P.Venkateshwarlu & Anr Vs. Government of Andhra Pradesh &

(2013)5SCC357

Ors 6 speaking through the Hon'ble Chief Justice, held that illegal and

unauthorized constructions apart from violating municipal laws and

planned development, also infringe the fundamental and

Constitutional rights of other persons. Thus, this Court while holding

that such constructions are to be dealt strictly to ensure the rule of

law ordered demolition of a building constructed in a park.

19. In view of the dicta laid down by the Hon'ble Supreme Court

and the Division bench of this court, and since admittedly the

petitioner herein had constructed 3rd to 5th floors of the building in

deviation of the sanctioned plan, this Court is of the considered

opinion that the petitioner is disentitled from claiming any relief in

the Writ Petition.

20. At this stage, though a request is made by the learned counsel

for the petitioner for grant of time to enable the tenants inducted by

him into the property to vacate, it is to be noted that the said tenants

are not before this Court for making such a request. Further, it is to

be noted that the petitioner had voluntarily inducted tenants into the

illegally constructed floors, fully knowing that action would be

initiated by the respondents after passing the order dt.09.09.2021. In

addition to the same, this Court also takes note of the submission of

the learned standing counsel, that the illegal construction made by

the petitioner has already been removed. Therefore, this Court is of

W.P. No.12538 of 1999 and W.P. No.25738 of 1997 decided on 04.10.2023

the view that the petitioner cannot attempt to buy further time to

perpetuate his illegality under the guise of protecting the interests of

tenants.

21. Accordingly, the Writ Petition is dismissed. No order as to

costs.

22. Consequently, miscellaneous petitions, if any, pending shall

stand closed.

_____________________ T. VINOD KUMAR, J 12th October, 2023 Issue CC by12.10.2023.

B/o(gra)