Telangana High Court

Bharat Rashtra Samithi Brs Nalgonda vs The State Of Telangana on 18 September, 2024

Author: T. Vinod Kumar

Bench: T. Vinod Kumar

      THE HON'BLE SRI JUSTICE T. VINOD KUMAR

              WRIT PETITION No.25677 of 2024

ORDER:

Heard learned counsel for the petitioner, learned

Government Pleader for Municipal Administration and

Urban Development appearing for respondent No.1, learned

Government Pleader for Revenue appearing for respondent No.2,

Sri B. Jagan Madhav Rao, learned Standing Counsel appearing for

respondent Nos.3 & 4, and with the consent of the counsel

appearing for the respective parties, the Writ Petition is taken up

for hearing and disposal at admission stage.

2. Shorn of unnecessary details, the case of the petitioner, in

brief, is that it having been granted land for construction of its

office, had made construction under wrong impression that the

building permission is being obtained by its head quarters; that on

being issued with a notice by the respondents-authorities, it had

applied for building permission on 20.01.2024 through TG-bPASS

online process; that the 3rd respondent-authority, by its

proceedings, dt.20.07.2024, had rejected the aforesaid building

permission application made by the petitioner; that the petitioner

had assailed the said rejection order by filing a Writ Petition vide

W.P. No.22042 of 2024, which was disposed of by this Court by

order, dt.14.08.2024, granting liberty to the petitioner avail other

remedies against the said order of rejection; that thereafter it has

been issued with the impugned notice of even date as of the

rejection letter, whereby the petitioner was directed to remove the

unauthorizedly constructed building within (15) days.

3. It is the further case of the petitioner that as the Municipal

Tribunal, in terms of Section 179 of the Telangana Municipalities

Act, 2019 (for short 'the Act'), has not been constituted, the

petitioner has no other remedy except approaching this Court

against the impugned notice.

4. Per contra, learned Standing Counsel appearing on behalf of

respondents No. 3 & 4 submits that the building permission

application made by the petitioner on 20.01.2024 was in respect of

an already constructed building and accordingly the same was

rejected by the 2nd respondent noting that "as the building is not

satisfying Building Rules, proposal is returned unapproved".

Since, permission is required to be obtained before commencement

of construction, while by the application filed it had sought for post

facto permission in respect of an existing building consisting of

Ground + 2 upper floors; and that this Court in the Writ Petition

filed by the Petitioner vide W.P. No.22042 of 2024 impugning the

said rejection order, dt.20.07.2024, has passed a detailed order

noting therein that under the provisions of the Act there is no

provision, by which permission can be obtained for an already

constructed building.

5. Learned Standing Counsel further submits that the

authorities on rejecting the building permission application made,

had informed the same to the petitioner enclosing therewith the

impugned proceeding and since, the petitioner had already assailed

the order of the authorities in rejecting the building permission

application made, the present Writ Petition filed being the second

petition, questioning the consequential action of the authorities

pursuant to the rejection of the building permission application

made in directing the petitioner to remove the said unauthorized

construction made within (15) days, is not maintainable.

6. I have taken note of the respective submissions made.

7. At the outset, it is to be noted that the Hon'ble Supreme

Court in Juvvadi Sagar Rao Vs. Union of India & Ors 1, had noted

its displeasure with the practice of the state governments releasing

regularization schemes to regularize illegal and unauthorized

constructions.

8. It is also to be noted that under the Telangana Municipalities

Act, 2019, there is no provision akin to Section 218(A) of the A.P.

Municipalities Act, 1965, whereby the State had the power to issue

notification to regularize any unauthorized and illegal construction.

Similarly, there is no provision as akin to Section 455-A of the

GHMC Act, 1955, whereby the Commissioner is bestowed with

the power to regularize a construction made without permission

subject to the said construction being in conformity with the

Building Rules notified under G.O.Ms. No.168 dated 07.04.2012.

9. This Court, in W.P. No.22042 of 2024, dt.14.08.2024, while

taking into consideration the law on regularization on unauthorized

and illegal constructions, had held that the authorities under the Act

are not conferred with power to regularize the unauthorized and

illegal construction made either by collecting penal fee or

compounding the same. In absence of any such power being

conferred on the authority neither the action of the Commissioner-

2nd respondent rejecting the regularization application impugned in

the Writ Petition No.22042 of 2024 nor the consequential order

impugned in the present Writ Petition directing the petitioner to

remove the said unauthorized construction cannot be held as

illegal.

10. This Court had further held that the petitioner could not have

made an application for grant of building permission under the TG-

bPASS Act, 2020 in respect of an already existing building and

thus, upheld the order passed by the 3rd respondent-authority in

rejecting the application submitted by the petitioner through TG-

bPASS online process for grant of building permission in respect

of an existing building.

11. Though another contention was sought to be advanced by the

petitioner that the construction is only in marginal deviation and, as

such, the authority could not have passed an order, it is to be noted

that the issue of deviation would come if only the construction

made was by obtaining any necessary permission or sanction.

However, in the facts of the case, the construction itself was made

without obtaining any permission or sanction and thus the question

of deviation would not arise at all inasmuch as the entire

construction itself is an unauthorized and illegal construction as

held by this Court in Writ Petition No.22042 of 2024.

12. Further, while the petitioner claims that the construction

made was intended to serve poor, however, the said plea of the

petitioner in the light of the definition of building under the Act

whereby a poor man is also required to obtain building permission

for construction of a hut or a compound wall, would not obviate the

necessity of the petitioner requiring to obtain permission for

construction.

13. That apart, it is also to be noted that if the petitioner was

aggrieved by the order of rejection, he ought to have availed the

remedy of appeal provided under Section 252(1) of the Act. On the

contrary the petitioner herein chose to approach this Court by

filing Writ Petition at an earlier point of time vide W.P.No.22042

of 2024, and this Court having adjudicated the same vide order,

dt.14.08.2024, it is not open for the petitioner to once again call in

question the consequential action of the respondent authorities in

issuing the impugned notice to give effect to the rejection order,

dt.20.07.2024, without assailing either the rejection order before

the appropriate authority or the order passed by this Court in W.P.

No.22042 of 2024.

14. Thus, the petitioner herein had foreclosed his right to to

assail the consequential action of the authorities in issuing the

impugned proceeding, termed as 'final order', whereby the

petitioner was directed to remove the said unauthorized and illegal

construction made within a period of (15) days time, as the

impugned proceeding is only a further course of action, which the

authorities are required to take under Section 178 of the Act,

whereby the petitioner was given an opportunity to remove the

construction by himself within (15) days. The said direction of the

authority is squarely in line with the direction of the Hon'ble

Supreme Court in Municipal Corporation of Greater Mumbai and

others v. Sun Beam High tech Developers Pvt., Ltd. 2, wherein the

Hon'ble Supreme Court had directed the authorities to grant 15

days time to remove unauthorized construction.

(2019) 20 SCC 781

15. Though it is sought to be contended by the petitioner that the

impugned notice could not have been issued on the same day as the

date of passing of the rejection order, no reason or rationale is

shown to this Court which requires the authority to pass an order of

the nature impugned on the subsequent day and not on the same

day. Rather the authority who had passed the rejection order is the

same authority who is required to take action against the

unauthorized and illegal construction, this Court is of the view that

the action of the respondents is in line with the directions of the

Hon'ble Supreme Court in Sun Beam High tech Developers

Pvt.'s, case(1 supra). For the said reason also, the challenge to the

impugned proceeding fails.

16. For the said reason, the present Writ Petition is devoid of

merit and it is liable to be dismissed.

17. At this juncture, it becomes necessary to discuss the position

of law on conduct of parties.

18. The Supreme Court in Indian Council for Enviro-Legal

Action Vs. Union of India (UOI) and Ors 3, held that the Courts

must discourage wrong doers who dishonestly abuse the process of

law with fraudulent, unscrupulous and dishonest litigation by

imposing punitive costs on litigants. The relevant observations are

as under:

"199. The Court also stated: "Before parting with this case, we consider it necessary to observe that one of the main reasons for over-flowing of court dockets is the frivolous litigation in which the Courts are engaged by the litigants and which is dragged as long as possible. Even if these litigants ultimately loose the lis, they become the real victors and have the last laugh. This class of people who perpetuate illegal acts by obtaining stays and injunctions from the Courts must be made to pay the sufferer not only the entire illegal gains made by them as costs to the person deprived of his right and also must be burdened with exemplary costs. Faith of people in judiciary can only be sustained if the persons on the right side of the law do not feel that even if they keep fighting for justice in the Court and ultimately win, they would turn out to be a fool since winning a case after 20 or 30 years would make wrongdoer as real gainer, who had reaped the benefits for all those years. Thus, it becomes the duty of the Courts to see that such wrongdoers are discouraged at every step and even if they succeed in prolonging the litigation due to their money power, ultimately they must suffer the costs of all these years long litigation. Despite settled legal positions, the obvious wrong doers, use one after another tier of judicial review mechanism as a gamble, knowing fully well that dice is always loaded in their favour, since even if they lose, the time gained is the real gain. This situation must be redeemed by the Courts."

216. In consonance with the principle of equity, justice and good conscience judges should ensure that the legal process is not abused by the litigants in any manner. The court should never permit a litigant to perpetuate illegality by abusing the legal process. It is the bounden duty of the court to ensure that dishonesty and any attempt to abuse the legal process must be effectively curbed and the court must ensure that there is no wrongful,

(2011)8SCC161

unauthorized or unjust gain for anyone by the abuse of the process of the court. One way to curb this tendency is to impose realistic costs, which the Respondent or the Defendant has in fact incurred in order to defend himself in the legal proceedings. The courts would be fully justified even imposing punitive costs where legal process has been abused. No one should be permitted to use the judicial process for earning undeserved gains or unjust profits. The court must effectively discourage fraudulent, unscrupulous and dishonest litigation.

217. The court's constant endeavour must be to ensure that everyone gets just and fair treatment. The court while rendering justice must adopt a pragmatic approach and in appropriate cases realistic costs and compensation be ordered in order to discourage dishonest litigation. The object and true meaning of the concept of restitution cannot be achieved or accomplished unless the courts adopt a pragmatic approach in dealing with the cases.

218. This Court in a very recent case Ramrameshwari Devi and Ors. v. Nirmala Devi and Ors. MANU/SC/0714/2011 : 2011 (6) Scale 677 had an occasion to deal with similar questions of law regarding imposition of realistic costs and restitution. One of us (Bhandari, J.) was the author of the judgment. It was observed in that case as under:

While imposing costs we have to take into consideration pragmatic realities and be realistic what the Defendants or the Respondents had to actually incur in contesting the litigation before different courts. We have to also broadly take into consideration the prevalent fee structure of the lawyers and other miscellaneous expenses which have to be incurred towards drafting and filing of the counter affidavit, miscellaneous charges towards typing, photocopying, court fee etc. The other factor which should not be forgotten while imposing costs is for how long the Defendants or Respondents were compelled to contest and defend the litigation in various courts. The Appellants in the instant case have harassed the Respondents to the hilt for four decades in a totally frivolous and dishonest litigation in various courts. The Appellants have also wasted judicial time of the various courts for the last 40 years."

(emphasis supplied)

19. The three-judge bench of the Supreme Court in Dnyandeo

Sabaji Naik v. Pradnya Prakash Khadekar4, held that it was the

duty of the Courts to impose exemplary costs on litigants who take

(2017) 5 SCC 496

liberties with the truth or procedures of the Court. The relevant

observations are as under:

"13. This Court must view with disfavour any attempt by a litigant to abuse the process. The sanctity of the judicial process will be seriously eroded if such attempts are not dealt with firmly. A litigant who takes liberties with the truth or with the procedures of the Court should be left in no doubt about the consequences to follow. Others should not venture along the same path in the hope or on a misplaced expectation of judicial leniency. Exemplary costs are inevitable, and even necessary, in order to ensure that in litigation, as in the law which is practised in our country, there is no premium on the truth.

14. Courts across the legal system--this Court not being an exception--are choked with litigation. Frivolous and groundless filings constitute a serious menace to the administration of justice. They consume time and clog the infrastructure. Productive resources which should be deployed in the handling of genuine causes are dissipated in attending to cases filed only to benefit from delay, by prolonging dead issues and pursuing worthless causes. No litigant can have a vested interest in delay. Unfortunately, as the present case exemplifies, the process of dispensing justice is misused by the unscrupulous to the detriment of the legitimate. The present case is an illustration of how a simple issue has occupied the time of the courts and of how successive applications have been filed to prolong the inevitable. The person in whose favour the balance of justice lies has in the process been left in the lurch by repeated attempts to revive a stale issue. This tendency can be curbed only if courts across the system adopt an institutional approach which penalises such behaviour. Liberal access to justice does not mean access to chaos and indiscipline. A strong message must be conveyed that courts of justice will not be allowed to be disrupted by litigative strategies designed to profit from the delays of the law. Unless remedial action is taken by all courts here and now our society will breed a legal culture based on evasion instead of abidance. It is the duty of every court to firmly deal with such situations. The imposition of exemplary costs is a necessary instrument which has to be deployed to weed out, as well as to prevent the filing of frivolous cases. It is only then that the courts can set apart time to resolve genuine causes and answer the concerns of those who are in need of justice. Imposition of real time costs is also necessary to ensure that access to courts is available to citizens with genuine grievances. Otherwise, the doors would be shut to legitimate causes simply by the weight of undeserving cases which flood the system. Such a situation cannot be allowed to come to pass. Hence it is not merely a matter of discretion but a duty and obligation cast upon all courts to ensure that the legal system is not exploited by those who use the forms of the law to defeat or delay justice. We commend all courts to deal with frivolous filings in the same manner."

(emphasis supplied)

20. The above principle was reiterated by the Apex Court in In

Re: Vijay Kurle and Ors 5.

21. Therefore, this Court is of the view that the conduct of the

petitioner herein is no less warranting for imposition of exemplary

costs for abuse of process of law.

22. In view of the above, the writ petition as filed is

misconceived, misconstructed and is liable to be dismissed with

exemplary costs for wasting judicial time.

23. Accordingly, the Writ Petition is dismissed with costs of

Rs.1,00,000/- payable to the District Legal Services Authority,

Nalgonda, within a period of four (04) weeks from today.