Telangana High Court

Syed Baquer Hussain vs The State Of Telangana on 28 October, 2024

          THE HON'BLE THE CHIEF JUSTICE ALOK ARADHE
                              AND
            THE HON'BLE SRI JUSTICE J.SREENIVAS RAO

    + WRIT PETITION Nos. 38256 OF 2022 AND 28407 of 2023

WRIT PETITION No. 38256 OF 2022

% Dated 28.10.2024

# Syed Baquer Hussain S/o Syed Hajee Hussain, aged
  about 80 years, occ: NIL, R/o H.No.10-2-347/3B,
  Asif Nagar, Hyderabad.
                                                              ....Petitioner
                                 VERSUS
$ The State of Telangana, through its Principal
  Secretary, Municipal Administration, having office at
  T.S. Secretariat, Hyderabad and others.
                                                          ... Respondents

WRIT PETITION No. 28407 OF 2023

# Syed Baquer Hussain S/o Syed Hajee Hussain, aged
  about 80 years, occ: NIL, R/o H.No.10-2-347/3B,
  Asif Nagar, Hyderabad.
                                                             ....Petitioner
                                 VERSUS
$ The State of Telangana, through its Principal
  Secretary, Municipal Administration, having office at
  T.S. Secretariat, Hyderabad and others.
                                                          ... Respondents

! Counsel for Petitioner                     : Sri Mohd.Adnan,

^ Counsel for Respondent Nos.3 and 4
  in W.P.No.28407 of 2023 and respondent
  Nos.2 and 3 in W.P.No.38256 of 2022    : Sri K.Siddharth Rao

  Counsel for respondent No.5 in W.P.
  No.28407 of 2023                           : Sri K.Giridhar Raju

< GIST:

> HEAD NOTE:

? CITATIONS: 1. (2011) 7 SCC 69
             2. (2008) 12 SCC 481
             3. (2014) 15 SCC 197
                                       ::2::


     THE HON'BLE THE CHIEF JUSTICE ALOK ARADHE
                                      AND
       THE HON'BLE SRI JUSTICE J. SREENIVAS RAO

   WRIT PETITION Nos.38256 of 2022 and 28407 of 2023

COMMON ORDER:

(Per the Hon'ble Sri Justice J. Sreenivas Rao)

W.P.No.38256 of 2022 is filed for the following relief:

"That this Hon'ble Court may be pleased to pass an order, direction or a writ particularly in the nature of Writ of Mandamus declaring that the action on part of the respondents in demolishing the roof over common passage and attached staircase on the southern side of the petitioner's house bearing M.C.No. 10-2-347/B/51/A/A, situated at Asif Nagar, Hyderabad, is highly illegal, arbitrary, in violation of the GHMC Act and unconstitutional. Consequently, this Hon'ble Court may be pleased to direct the respondents to reconstruct the roof over common passage and attached staircase on the southern side of the petitioner's house bearing M.C.No. 10-2- 347/B/51/A/A, situated at Asif Nagar, Hyderabad as per the plan and compensate the petitioner for causing mental agony and violation of statutory laws and constitutional rights and financial loss to a tune of Rs. 10,00,000/- (Rupees ten lakhs) and pass any other order or orders as deemed fit and proper in the circumstance of the case in the interest of justice."

W.P.No.28407 of 2023 is filed for the following relief:

"That this Hon'ble Court may be pleased to pass an order, direction or a writ particularly in the nature of Writ of Mandamus declaring that the action of the Human Rights Commission, in giving demolition orders to the respondents No.2 and 4, to demolish the stair case and roof belonging to ::3::

the petitioner on the southern side of his house bearing M.C.No. 10-2-347/B/51/A/A, situated at Asif Nagar, Hyderabad, vide proceedings in HRC No.260 of 2020, finally disposed off on 18th August 2022, is highly illegal, arbitrary and beyond the jurisdiction and scope of Protection of Human Rights Act. Consequently, this Hon'ble Court may be pleased to direct the respondents to compensate the petitioner for causing mental agony and violation of statutory laws and constitutional rights and financial loss to a tune of Rs. 10,00,000/- (Rupees ten lakhs) and pass any other order or orders as deemed fit and proper in the circumstance of the case in the interest of justice."

2. For the sake of convenience, the parties shall be referred to

in this order as per their ranking in Writ Petition No.28407 of

2023.

3. Brief facts of the case:

3.1. The petitioner is claiming that he is owner of house bearing

Door No.10-2-347/B/51/A/A, situated at Asif Nagar,

Hyderabad. Abutting to the said property on its south side,

there was a house belonging to his daughter and she sold the

same to one Mr.Abdul Muqeeth-respondent No.5 and

Mohammed Abdul Moyeed through registered sale deed in the

year 2008. On the southern side of the petitioner's house, there

is a staircase with a roof connecting the entrance and the said ::4::

staircase exclusively meant for egress and ingress to his

property. In the year 2010, he got regularization vide

proceedings No.4870/C7/CZ/2008, dated 05.07.2010, including

the roof and staircase. He further averred that respondent No.5

filed Writ Petition No.25550 of 2011 against the petitioner and

Greater Hyderabad Municipal Corporation (GHMC) to consider

his representation for demolition to staircase and ramp

connecting to the entrance of the petitioner's house and the

same was dismissed on 10.07.2012. Again respondent No.5 filed

Writ Petition No.40246 of 2012 for not taking action pursuant to

the Notice No.279/TPS/C7/W10/2012 dated 20.11.2012 and

the said Writ Petition was disposed of with a direction to the

respondent Corporation to take appropriate steps in accordance

with law, in case any illegal construction over the third floor of

the petitioner's property. Aggrieved by the order dated

10.07.2012 in Writ Petition No.25550 of 2011, respondent No.5

filed Writ Appeal No.1020 of 2012 and the same was dismissed

on 02.07.2013 recording the regularization in respect of the

subject property.

3.2. The petitioner further averred that the respondent

Corporation without giving any notice and without following due ::5::

process of law cancelled the regularization proceedings issued

on 05.07.2010 through order dated 14.05.2013 on the ground

that the petitioner obtained permission under Building

Penalisation Scheme (BPS). Thereafter, the petitioner applied for

regularization of building as well as staircase with a roof over the

common passage under G.O.Ms.No.152 dated 02.11.2015.

When the said application is pending, the respondent

Corporation in the year 2018 without issuing any notice

demolished the staircase and roof over the common passage.

When the petitioner questioned the same before the Zonal

Commissioner, GHMC, who noticed gross irregularities by his

subordinates in demolishing the staircase/ramp and then

ordered reconstruction of the same on 12.12.2019 and the same

was reconstructed by the respondent Corporation. He further

stated that in the month of January, 2022, the respondent

Corporation under the influence of his neighbours once again

demolished the staircase and roof leading to his house.

Questioning the same, the petitioner filed Writ Petition No.38256

of 2022 directing the respondent Corporation to reconstruct the

roof over common passage and attached staircase on the ::6::

southern side of his house and also claiming compensation of an

amount of Rs.10,00,000/-.

3.3. When the said Writ Petition No.38256 of 2022 is pending,

the petitioner filed another Writ Petition No.28407 of 2023

questioning the order passed by respondent No.2 - Human

Rights Commission on 18.08.2022 in H.R.C.No.260 of 2020

including demolishing the staircase and roof belonging to the

petitioner on the complaint lodged by respondent No.5 and also

prayed for compensation of an amount of Rs.10,00,000/-.

3.4. Respondent Nos.3 and 4 filed counter affidavit denying the

allegations made by the petitioner inter alia contending that the

petitioner has made an application under Building Penalization

Scheme for regularization of his construction of ground + 3

upper floors vide Application No.BPS/4870/C7/CZ/2008 and

the same was regularized vide Proceedings No.4870/C7/CZ/

2008 dated 05.07.2010. Subsequently, respondent No.5 filed

Writ Petition No.25550 of 2011 with a prayer to direct the

respondent Corporation to take action on the illegal construction

of ramp made over the common passage and the said writ

petition was dismissed on 10.07.2012. Later, respondent No.5 ::7::

had lodged a complaint on 03.09.2012 to the respondent

Corporation stating that the petitioner has regularized his

premises for ground + 3 floors by playing fraud and in fact the

existing structure as on site is only ground + 2 upper floors. The

Building Penalization Scheme has issued at that point of time

only for penalizing any unauthorized construction which were

present on site at the time of announcement of the Scheme in

and around 2008. In fact, the petitioner had applied under

Building Penalization Scheme for regularization of ground + 3

floors, which never existed at the time of submission of

application, is considered to be misrepresentation of fact and

hence liable to be rejected.

3.5. Pursuant to the above said complaint, the respondent

Corporation has issued a notice vide No.279/TPS/C7/W10/

2012 dated 06.09.2012 directing the petitioner to submit reply

within (7) days from the date of receipt of the notice or else

action will be taken. Accordingly, the petitioner has submitted

reply on 12.09.2012. The respondent Corporation after due

verification of the records and property come to a conclusion

that the petitioner has got regularized the property by playing

fraud and misleading the respondent Corporation that there is ::8::

existing 3rd floor, whereas the existing structure was ground + 2

floors. Hence, the proceedings under Building Penalization

Scheme dated 05.07.2010 was cancelled and the respondent

Corporation has issued proceedings vide Proc.No.BPS/4870/

C7/CZ/2008-13 dated 14.05.2013. The petitioner has not

challenged or appealed against the said cancellation order. It is

further averred that the petitioner again applied under the new

Building Regularisation Scheme, 2015 on 27.11.2015 for

regularization of his construction consisting of ground + 3 upper

floors along with additional ramps constructed over the common

passage.

3.6. In the meanwhile, respondent No.5 filed Writ Petition

No.40246 of 2012 and the same was disposed of on 06.02.2017

directing the respondent Corporation to make an enquiry

whether or not construction is in existence in the 3rd floor and

whether respondent No.4 therein has obtained regularization

orders without there being any existing structure as alleged by

the petitioner and take appropriate steps in accordance with

law. Pursuant to the said order, the respondent Corporation had

investigated the site and as there was no regularization done,

the respondent Corporation had issued speaking order under ::9::

Section 636 of the Hyderabad Municipal Corporation Act, 1955

(hereinafter referred to as 'the HMC Act') vide Lr.No.4870/

TPS/C7/CZ/GHMC/2017 dated 10.08.2017 directing the

petitioner to vacate the illegal construction of ground + 3 upper

floors within 24 hours. Again the respondent Corporation has

issued notice under Section 636 of the HMC Act on 08.08.2018.

But, the petitioner did not comply with the speaking order dated

10.08.2017 and 08.08.2018. The respondent Corporation has

not taken any further action in respect of the premises, as the

application under the Building Regularisation Scheme has not

been disposed of. However, the ramp constructed over the

common passage cannot be regularized and the same is illegal

even considering the pendency of the application. The

respondent Corporation had issued a letter dated 05.01.2019 to

the police officials seeking protection for the demolition of ramp

portion and the roof laid over the common passage and after

following the due procedure, the respondent Corporation

demolished the ramps constructed illegally.

3.7. It is further averred that the petitioner reconstructed the

RCC slab in common passage on the 1st floor which was

demolished earlier. Aggrieved by that, respondent No.5 ::10::

approached respondent No.2 and filed complaint vide No.260 of

2020 on 24.01.2020 and the same was considered by

respondent No.2 and thereby called for a report from respondent

No.3. Respondent No.3 filed report on 19.11.2020 assuring that

it would take further course of action and file compliance report.

In this regard, the Town Planning Staff of Circle No.12,

Mehdipatnam, had demolished the illegal construction of RCC

slab laid on the common passage on the

1st floor in the premises bearing No.10-2-347/B/51/A/A,

situated at Asif Nagar, Hyderabad, on 01.04.2021. It is further

stated that the entire construction made by the petitioner is

without any prior permission or sanction and the ramps/

construction made over the common passage are illegal and in

violation of the Building Rules, 2012. The application under

Building Penalisation Scheme was revoked by proceedings dated

14.05.2013.

3.8. Respondent No.5 filed counter-affidavit, wherein it is

stated that the petitioner has played fraud and obtained

regularization proceedings for a non-existing structure. The

petitioner has not challenged the cancellation of Building

Penalisation Scheme dated 14.05.2013 and the same has ::11::

become final. The petitioner filed O.S.No.2376 of 2012 against

the GHMC and obtained interim injunction in I.A.No.737 of

2012. Pursuant to the said interim orders, the petitioner has

completed the construction of the 3rd floor and subsequently the

said suit was dismissed on 18.04.2016. The petitioner has

deliberately suppressed the said fact in the writ petition. It is

further stated that pursuant to the orders dated 06.02.2017

passed in Writ Petition No.40246 of 2012, the Deputy

Commissioner, GHMC, Circle-12, issued notice dated

10.08.2017 and subsequently issued final notice under Section

636 of the HMC Act on 08.08.2018 and the respondent

Corporation after following the due process of law removed the

structure on common passage on 09.01.2019 and 11.01.2019.

Thereafter, the petitioner once again reconstructed a part of the

earlier demolished portion illegally with the connivance of the

GHMC authorities on 12.12.2019. At that stage, respondent

No.5 filed complaint before respondent No.2, vide H.R.C.No.260

of 2020, wherein the Commissioner, GHMC, filed a report on

19.11.2020 and additional report on 07.04.2022 stating that the

respondent Corporation removed reconstructed portion of the

roof on the common passage on 01.04.2021. Pursuant to the ::12::

said report, respondent No.2 disposed of the said H.R.C. on

18.08.2022. The petitioner approached this Court and filed the

Writ Petitions by suppressing several material facts and the

same is liable to be dismissed with exemplary costs.

4. Heard Mr. Mohd. Adnan, learned counsel for the petitioner,

Mr. K. Siddharth Rao, learned Standing Counsel for GHMC

appearing for respondent Nos.3 and 4 in Writ Petition No.28407

of 2023 and respondent Nos.2 and 3 in Writ Petition No.38256 of

2022 and Mr. K. Giridhar Raju, learned counsel for respondent

No.5 in Writ Petition No.28407 of 2023. No representation on

behalf of respondent Nos.1 and 2 in Writ Petition No.28407 of

2023 and respondent No.1 in Writ Petition No.38256 of 2022.

5. Submissions of learned counsel for the petitioner:

5.1. Learned counsel for the petitioner vehemently contended

that respondent Nos.3 and 4 without issuing any notice and

without following due process of law demolished the roof over

the common passage and attached staircase. He further

contended that pursuant to the orders of respondent No.2 dated

18.08.2022 only demolished the structures of the petitioner by

respondent Nos.3 and 4, especially respondent No.2 is not ::13::

having jurisdiction to entertain the complaint of respondent No.5

and pass orders. The action of the respondents is in gross

violation of the principles of natural justice and offend Article

300-A of the Constitution of India. Hence, the petitioner is

entitled for reconstruction of roof over common passage and

attached stair case on the southern side of the petitioner's house

and also entitled for compensation of an amount of

Rs.10,00,000/- in each Writ Petition. However, the petitioner is

restricting the claim at Rs.10,00,000/- in both the Writ

Petitions. In support of his contention, he relied upon the order

passed by the Division Bench of this Court in Writ Petition

No.38247 of 2022 dated 14.08.2023.

6. Submissions of learned Standing Counsel for GHMC:

6.1. Per contra, learned standing counsel contended that the

petitioner has constructed the building without sanction/

approved plan. The petitioner had made an application in the

year 2008 under Building Punalisation Scheme for

regularization of construction of ground + 3 floors and the same

was regularized through proceedings dated 05.07.2010. The

petitioner unauthorisedly constructed the ramp over the

common passage. Respondent No.5 lodged a complaint on ::14::

03.09.2012 to the respondent Corporation questioning the said

regularization proceedings dated 05.07.2010 issued in favour of

the petitioner on the ground that as on the date of regularization

proceedings, the petitioner has constructed only ground + 2

floors and the 3rd floor is not in existence as on the date of

submission of regularization application and he obtained the

said proceedings by playing fraud. The respondent Corporation

issued notice on 06.09.2012 and the petitioner has submitted a

reply dated 12.09.2012. The respondent Corporation after due

verification and after conducting enquiry cancelled the

regularization proceedings dated 05.07.2010 by its order dated

14.05.2013 and the said order has become final.

6.2. He further contended that pursuant to the orders dated

06.02.2017 passed in Writ Petition No.40246 of 2012, the

respondent Corporation after following the due procedure passed

speaking orders on 10.08.2017 and 08.08.2018 under Section

636 of the HMC Act and removed the ramps constructed by the

petitioner illegally on common passage on 09.01.2019.

Thereafter, the petitioner reconstructed RCC slab in the common

passage and the same was removed and the petitioner is not

entitled any relief.

::15::

7. Learned counsel for respondent No.5 also reiterated the

very same submissions made by the learned Standing Counsel

and in addition he submitted that the petitioner suppressed

several facts including filing of suit in O.S.No.2376 of 2012 and

approached this Court with unclean hands and he is not entitled

the equity relief.

Analysis:

8. Having considered the rival submissions made by the

respective parties and after perusal of the material available on

record, it reveals that the petitioner has made construction of

building including ramp over the common passage in the

premises bearing Door No.10-2-347/B/51/A/A, situated at Asif

Nagar, Hyderabad, in the absence of any sanction approved

plan. However, the petitioner had submitted application under

Building Penalisation Scheme for regularization of his

construction of ground + 3 upper floors, vide application

No.BPS/4870/C7/CZ/2008 and the same was regularized

through proceedings dated 05.07.2010. While things stood thus,

respondent No.5 filed Writ Petition No.25550 of 2011 seeking

direction to the respondent Corporation to take action on the

illegal construction of ramp made over the common passage and ::16::

the said Writ Petition was dismissed on 10.07.2012 on the

ground that the construction made by the petitioner was

regularized through proceedings dated 05.07.2010. It appears

from the record that respondent No.5 lodged a complaint dated

03.09.2012 to the respondent Corporation stating that the

petitioner had got regularization proceedings by playing fraud

and in fact the existing structure on the site as on the date of

application is ground + 2 upper floors only, whereas the

petitioner has made application under Building Penalisation

Scheme for regularization of building i.e., construction of ground

+ 3 upper floors, which is never existing, and requested the

respondent Corporation to take appropriate steps. Pursuant to

the same, the respondent Corporation after issuing notice and

after considering the explanation of the petitioner passed order

on 14.05.2013 cancelling the regularization proceedings dated

05.07.2010 issued in favour of the petitioner. It further appears

from the record that the petitioner has not questioned the said

cancellation/revocation proceedings and the same has become

final.

9. It is pertinent to mention here that the petitioner filed suit

in O.S.No.2376 of 2012 against the GHMC authorities and ::17::

obtained interim injunction order in I.A.No.737 of 2012 and the

said suit was dismissed on 18.04.2016. The factum of filing of

the said suit has not been stated in both the Writ Petitions. The

specific claim of respondent No.5 is that after obtaining ex parte

ad-interim injunction in O.S.No.2376 of 2012, the petitioner has

made construction of the 3rd floor and the same was not denied

by the petitioner.

10. It further reveals from the record that the petitioner has

made an application under the new Building Regularisation

Scheme of 2015 dated 27.01.2015 for regularization of his

construction consisting of ground + 3 upper floors along with

additional ramps constructed over the common passage. In the

meanwhile, respondent No.5 filed Writ Petition No.40246 of 2012

questioning the action of the respondent authorities therein in

not taking any consequential action in furtherance of notice

dated 20.11.2012 under HMC Act and not taking any steps to

restrain the respondent No.4 from making further construction

and also not considering the representation dated 30.09.2012

and the said Writ Petition was disposed of on 06.02.2017 and

the operative portion of the order is extracted hereunder:

::18::

"Considering the facts and circumstances of the case, the petitioner is directed to give a detailed representation to the concerned authorities of respondent-Corporation and on such representation, the authorities of respondent-Corporation is directed to make an enquiry whether or not construction is in existence in the third floor and whether the 4th respondent has obtained regularization orders without there being any existing structures as alleged by the petitioner and take appropriate steps in accordance with law.

The writ petition is disposed of accordingly. No costs."

11. Pursuant to the above said order, the respondent

Corporation issued notice on 10.08.2017 directing the petitioner

to vacate/remove the illegal construction of ground + 3 upper

floors. Thereafter, the respondent Corporation had issued notice

under Section 636 of the HMC Act on 08.08.2018 and thereafter

demolished the ramps constructed by the petitioner on

09.01.2019. Thereafter, the petitioner had reconstructed RCC

slab in the common passage, which was demolished by the

respondent Corporation earlier. Respondent No.5 filed

application before respondent No.2, vide H.R.C.No.260 of 2020,

wherein the respondent Corporation filed report on 24.01.2020

and 19.11.2020 stating that the respondent Corporation had ::19::

removed the illegal construction of RCC slab laid on the common

passage, pursuant to the report of respondent No.2 and the said

H.R.C. was disposed of, by its order dated 18.08.2022.

12. It is also relevant to place on record that respondent No.2

is not having authority or jurisdiction to entertain the complaint

of respondent No.5 and pass orders dated 18.08.2002. However,

the petitioner is not entitled the relief of seeking direction to the

respondent Corporation to reconstruct the roof over the common

passage and attached staircase on the southern side of the

petitioner's house and claiming compensation of Rs.10,00,000/-

on the ground that the petitioner had approached the Court with

unclean hands and suppressed material facts as stated supra

and filed the Writ Petitions invoking extraordinary jurisdiction

under Article 226 of the Constitution of India.

13. It is trite law that a person invoking equity jurisdiction of

this Court under Article 226 of the Constitution of India is

required to approach the Court with clean hands and also by

making complete disclosure. In the instant case, the petitioner

approached the civil Court and filed suit in O.S.No.2376 of 2012

and the said facts were suppressed including the factum of non-

::20::

existence of the 3rd floor and submitted application and obtained

regularization proceedings on 05.07.2010 for ground + 3 upper

floors. Hence, the petitioner is not entitled equity relief.

14. In Amar Singh v. Union of India and others 1, the Hon'ble

Apex Court held that litigant, who comes to Court and invokes

writs jurisdiction, must come with clean hands and he cannot

prevaricate and take inconsistent stands because law is not a

game of chess and equitable nature of remedy must be governed

by principle of uberrima fides. The Court highlighted that such

suppression of material facts undermines the integrity of the

judicial process, emphasizing the importance of transparency

and truthfulness in all interactions with the court.

15. In K.D. Sharma v. Steel Authority of India limited and

ors. 2, the Hon'ble Apex Court held the jurisdiction of the

Supreme Court under Article 32 and of the High Court under

Article 226 of the Constitution is extraordinary, equitable and

discretionary. Prerogative writs mentioned therein are issued for

doing substantial justice. It is, therefore, of utmost necessity

that the petitioner approaching the writ court must come with

(2011) 7 SCC 69

(2008) 12 SCC 481 ::21::

clean hands, put forward all the facts before the court without

concealing or suppressing anything and seek an appropriate

relief. If there is no candid disclosure of relevant and material

facts or the petitioner is guilty of misleading the court, his

petition may be dismissed at the threshold without considering

the merits of the claim.

16. The judgment of the Hon'ble Supreme Court relied on by

the learned counsel for the petitioner in G.Manikyamma v.

Roudri Cooperative Housing Society Limited 3 has taken note

of Section 12 of the Protection of Human Rights Act, 1993,

which deals with functions and powers of the Commission. In

view of the aforesaid enunciation of law, respondent No.2 is not

having jurisdiction to entertain the application of respondent

No.5.

17. For the foregoing reasons, the impugned order dated

18.08.2022 passed by respondent No.2 is set aside. Insofar as

the other reliefs i.e., seeking reconstruction of roof over common

passage and attached staircase on the southern side of the