Telangana High Court

Mr. Chintala Kumar Yadav, vs The State Of Telangana, on 23 April, 2024

Author: T. Vinod Kumar

Bench: T. Vinod Kumar

     THE HON'BLE SRI JUSTICE T. VINOD KUMAR

             WRIT PETITION No.7132 of 2024
ORDER:

This Writ Petition is filed for issuance of a Writ of

Mandamus declaring the action of respondent No.3 in not taking

action against the unauthorized construction raised by respondent

Nos.4 to 6 without obtaining prior building permission and

without having valid title to the land admeasuring Ac.0.36 gts on

Plot No.327, in Sy.Nos.78 to 93 situated at Raja Rajeswara

Nagar of Kondapur Village, Serilingampally Municipality,

GHMC, Ranga Reddy District despite receipt of petitioner's

complaint/representation dated 28-02-2024, as illegal, arbitrary

and in violation of Telangana Municipalities Act, 2019 and TS-

bPASS Act, 2020 and Article 21 and 300-A of the Constitution

of India and consequently direct respondent No.3 to demolish the

unauthorized structures raised by respondent Nos.4 to 6.

2. Heard Sri B. Mayur Reddy, learned Senior Counsel for Sri

Saini Aravind, learned counsel for the petitioner, learned

Government Pleader for Municipal Administration and Urban

Development appearing on behalf of respondent Nos.1 and 2, Sri

M.A.K. Mukheed, learned Standing Counsel appearing on behalf

of respondent No.3 and Sri Unnam Muralidhar Rao, learned

Senior Counsel for M/s. Unnam Law Firm, learned counsel

appearing on behalf of respondent Nos.4 and 5, and perused the

record. With the consent of learned counsel appearing for the

parties, the Writ Petition is taken up for hearing and disposal.

3. Shorn of unnecessary details, the case of the petitioner is

that he is the owner of plot No.327 admeasuring 720 sq. yards in

Sy.No.82 situated in Raja Rajeshwari Nagar at Kondapur village,

Serilingampally Mandal, Ranga Reddy District having acquired

the same through family settlement; and that respondent Nos.4 to

6 herein without obtaining any building permission have made

unauthorized construction of commercial structure on the land

admeasuring Ac.0.36 gts in Sy.No.82 and 83 part and also

running a commercial establishment therein.

4. It is the further case of petitioner that on noticing the

aforesaid unauthorized construction made by the unofficial

respondents, he had approached the respondent authorities and

made an application under the Right to Information Act, 2005

requesting the authorities to furnish information as to whether

any building permission has been granted in respect of property

located on Plot No.327 in Sy.Nos.78 to 93 situated at Raja

Rajeshwari Nagar, Kondapur, Serilingampally Municipality,

Ranga Reddy District; and that in response to the aforesaid

application, the respondent authorities by their reply have

categorically stated that no building permissions were traceable

for the construction made on Plot No.327 in Sy.Nos.78 to 93

situated at Raja Rajeshwari Nagar, Kondapur, Serilingampally

Municipality, Ranga Reddy District.

5. Petitioner further contends that on receiving the aforesaid

intimation from the respondent authorities under the RTI Act, he

had approached the respondent authorities and lodged a

complaint/representation on 28-02-2024 requesting the

3rd respondent to initiate action against the unauthorized

construction made by the unofficial respondents by exercising

their powers under the Greater Hyderabad Municipal

Corporation Act, 1955 and TS-bPASS Act, 2020.

6. Petitioner further contends that in spite of him approaching

the respondent authorities and submitting complaint /

representation on 28-02-2024, no action has been initiated and

hence, this Writ Petition.

7. Per contra, learned Standing Counsel appearing on behalf

of respondent Nos.2 and 3 submits that on receiving the

complaint/representation from the petitioner, the respondent

authorities have inspected the site under reference and observed

that the owner of plot No.327 of Sy.Nos.78 to 93 situated at Raja

Rajeshwari Colony, Kondapur villge, Serilingampally Mandal

had unauthorisedly constructed ground floor (shed), wherein a

commercial establishment of a Super Market is being run.

8. Learned Standing Counsel further submits that the

authorities, on noticing the aforesaid unauthorized construction,

have issued show cause notice dated 22-03-2024 with a direction

to submit explanation as to why the portion of construction made

in contravention of the sanctioned plan and unauthorizedly

should not be removed, altered or pulled down'.

9. Learned Standing Counsel further submits that on the

aforesaid show cause notice being issued, neither the owner nor

the Occupier had submitted any reply thereto, and thus, the

respondent authorities by exercising the powers conferred under

the Greater Hyderabad Municipal Corporation Act, 1955 and

TS-bPASS Act, 2020 had passed a speaking order dated

10-04-2024 directing the Owner / Occupier to remove the shed

constructed contrary to the sanctioned plan and to bring back the

building in conformity with the sanctioned plan within 15 days

from the date of receipt of the notice, failing which the

Owner/Occupier was informed that further action will be taken

up by the Authorities under the provisions of the Greater

Hyderabad Municipal Corporation Act, 1955 and TS-bPASS

Act, 2020.

10. By stating as above, learned Standing Counsel appearing on

behalf of respondent authorities has placed before this Court a

copy of the speaking order dated 10-04-2024 for perusal of the

Court.

11. Learned Senior Counsel appearing on behalf of respondent

Nos.4 and 5 appearing through Hybrid mode, on the other hand,

contended that the petitioner has no locus standi to maintain the

present Writ Petition and sought for time to file a counter

affidavit.

12. Further, when this Court was pointing out to the learned

Standing Counsel in a lighter vein that it appears that the

authorities would wake up to take action only when a citizen

approaches this Court, the learned Senior Counsel appearing for

the respondent No. 4 & 5 through Hybrid mode, addressing the

Court in a high pitched tone had questioned this Court as to why

it is attributing sarcasm to the issue.

13. I have taken note of respective submissions urged.

14. Before delving into the issue at hand, with regard to the

manner in which the learned senior counsel appearing for the

unofficial respondent sought to present himself in the matter, it is

to be seen that this Court vide order dated 10.04.2024 in W.P.No.

8719 of 2024 had expressed its concerned over the developing

trend among the learned counsels in addressing the Court in high

pitched voice adopted in a high pitched tone in order to deter the

Court from adjudicating the matter. While noting so, this Court

had cautioned that such practices would sow discord and ruin the

harmony with the bench. However, it is disconcerting to note

that such conduct is being repeated once again, that too by a

counsel who was conferred with a Senior Designation only in

recent times.

15. At this juncture, it is appropriate to echo the words of the

Hon'ble Supreme Court in O.P. Sharma and Ors. v. High Court

of Punjab and Haryana 1, wherein it was held that violation of

professional ethics is not only unfortunate but it is also

unacceptable. Further, it is also appropriate to note that an

advocate is conferred with a senior designation under Section 16

of the Advocates Act, 1961 not only for his expertise and

experience in a field of. law, but also while considering his

professional ethics and whether he would be deserving of such

distinction. It goes without saying that a designated senior

counsel is expected to lead the younger members of the bar by

(2011) 6 SCC 86

example. However, it appears that we are now at the cusp of an

age where the Senior officers of this Court are setting precedent

that the wheels of justice can be bogged down by misbehavior.

Therefore, the incident before this Court sends out a message

that there is an alarming need to relook at the existing process for

conferring a Senior Designation.

16. Adverting to the issue at hand, and the contentions urged by

the learned Senior Counsel appearing on behalf of respondent

Nos.4 and 5 as to the locus of the petitioner to maintain the

present Writ Petition, it is to be noted that both under the Greater

Hyderabad Municipal Corporation Act, 1955 and TS-bPASS

Act, 2020 empowers any citizen to make a complaint with regard

to the unauthorized and illegal construction.

17. Having regard to the provisions of Greater Hyderabad

Municipal Corporation Act, 1955 as well as TS-bPASS Act,

2020, this Court vide order dated 31-10-2023 in W.P.No.2430 of

2023 had noted that in order to maintain a Writ Petition against

the unauthorized and illegal construction, a person need not be

an affected party.

18. Further, it is also to be noted that Section 115 (26) of the

Greater Hyderabad Municipal Corporation Act, 1955 and

Section 10 (6) of the TS-bPASS Act, 2020 encourages a citizen

to bring to the notice of the authorities of the unauthorized and

illegal constructions for the authorities to take action there

against while protecting their identity and also providing reward.

Therefore, the claim of the unofficial respondents of the

petitioner not having locus to maintain the present petition is

liable to be rejected and it is accordingly rejected.

19. Thus, the only defense that would be available to the

unofficial respondent would be to seek dismissal of the writ

petition by showing that the construction was made by obtaining

permission from the respondent authorities and that such

construction was made in conformity with the sanctioned plan as

confirmed by the sanctioning authority; and that as such the writ

petition ought to be dismissed with cost.

20. The unofficial respondent except seeking time to file

counter did not show to this Court that the construction was

made in conformity to the sanctioned plan and the sanctioning

authority had approved the same. On the other hand the fact of

the fact of the respondent authority issuing show cause notice

and thereunder passing a speaking order would indicate the

contrary. For the said reason also the request for grant of time

cannot be acceded to, since a swift and stern action is required to

be taken against unauthorized and illegal constructions which

have become a menace to the concept of planned development.

Any indulgence or lethargy shown in dealing with such

unauthorized construction would only encourage violators.

21. The Hon'ble Supreme Court in Shanti Sports Club and

Ors. Vs. Union of India (UOI) and Ors 2, held that violators of

the Town Planning Scheme cannot be granted 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

(2009) 15 SCC 705

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 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."

(Emphasis supplied)

22. Further, the Hon'ble Supreme Court in Esha Ekta

Apartments Co-operative Housing Society Ltd. and Ors. Vs.

Municipal Corporation of Mumbai and Ors 3, held that

(2013) 5 SCC 357

Constitutional Courts ought to exercise their equitable

jurisdiction to regularize illegal and unauthorized constructions.

The relevant observations are as under:

"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."

(emphasis supplied)

23. Insofar as the claim of the petitioner of inaction on the part

of respondent authorities in initiating action on the basis of the

complaint made on 28-02-2024 is concerned, since the official

respondents have now informed this Court of the authorities

acting upon the complaint made by the petitioner, firstly by

issuing show cause notice dated 23-02-2024 and thereafter

passing a speaking order on 10-04-2024 whereby the

construction made by the unofficial respondents is held to be

unauthorized construction in deviation of sanctioned plan, this

Court is of the view that the respondent authorities should be

directed to take further action for enforcing the aforesaid