1996 Supreme(AP) 1366

Andhra Pradesh High Court
Judges : G.BIKSHAPATHY
Om Prakash Gupta - Appellant
Versus
State OF A.P.rep.by its Secretary, Municipal Administration, Hyderabad - Respondent
Decided On : 12-30-96

The High Court held that the entire construction is without any valid permission as on date and quashed the impugned permit.

Headnote:

HYDERABAD MUNICIPAL CORPORATION ACT - SECTION 452, 636 - G.O. MS. NO. 87, DATED 12-2-1992 - CONSTRUCTION - REGULARISATION - CONDITIONS - VIOLATION - PUBLIC INTEREST - WRIT PETITION - MAINTAINABILITY - MANDAMUS - SCOPE - PUBLIC LAW REMEDY - PRIVATE LAW REMEDY - DISTINCTION - ENCROACHMENT - PUBLIC PASSAGE - CONSTRUCTION - ILLEGAL - HEALTH HAZARD - DEMOLITION - DIRECTIONS.

Fact of the Case:

Petitioner challenged the permit issued by the Municipal Corporation of Hyderabad in favor of the 3rd respondent for the construction of a house by relaxing the rules. The 3rd respondent constructed three floors without any prior permission from the Municipal corporation. The Municipal Corporation issued notices under section 452 and 636 of the Hyderabad Municipal Corporation Act (H.M.C. Act). The 3rd respondent filed a suit in O. S. No. 932 of 1985 and obtained status quo orders. Under the garb of the status quo orders, the 3rd respondent made construction of ground floor and two upper floors by encroaching the ground area to the extent of 30 Square yards belonging to the Municipal Corporation. The petitioners filed a Writ Petition before the High Court and it was disposed of with a direction that the 3rd respondent shall construct the building in accordance with the Government orders and sanction plan of the Corporation. However, the 3rd respondent again violated the orders. The petitioners gave a complaint to the Corporation, upon which, the Corporation had issued a demolition notice. The 3rd respondent filed W. P. No. 10021 of 1991. In the meanwhile, the petitioners came to know that the 3rd respondent filed a suit O. S. No. 1932 of 1985 and the same was decreed. Subsequently, she filed E. P. No. 3 of 1988 for execution of the decree. Aggrieved by the proceedings in the execution petition, petitioners filed C. R. P. No. 1773 of 1991. While admitting the C. R. P. , the proceedings in the execution Petition were suspended by the High Court and finally the C. R. P. No. 1773 of 1991 was heard and by orders dated 16-6-1992 it was allowed. Subsequently, the 3rd respondent had withdrawn the Writ Petition. In the meanwhile, the 3rd respondent made constructions in gross violation of the permission and suppressing the previous history of the case, she made an application for regularisation of the constructions made by her, as per G. O. Ms. No. 87 of 1992 and it appears that the regularisation was granted by the Municipal Corporation in Permit No. 405/66 dated 21-11-1992 on the basis of the relaxation granted by the Government in G. O. Ms. No. 87, M. A. , dated 12-2-1992. The petitioners prayed for quashing the order in Permit No. 405/66 dated 21-11-1992.

Finding of the Court:

The High Court held that the entire construction is without any valid permission as on date. The Commissioner of Municipality has categorically stated that there is an encroachment on the public road and that the balconies and other constructions were made in gross violations of the sanction issued by the authorities in Permit No. 61/51 dated 28-11-1984. Accordingly, the latter Permit No. 405/66 dated 21-11-1992 is declared as illegal and invalid.

Issues: 1. Whether the Writ Petition is maintainable? 2. Whether the 3rd respondent is justified in constructing ground and three floors in the premises and whether there is any valid permission in the eye of law?

Ratio Decidendi: 1. The High Court held that the Writ Petition is maintainable as the relief claimed is in the interest of the public am - community at large. 2. The High Court held that the 3rd respondent is not justified in constructing ground and three floors in the premises and that there is no valid permission in the eye of law.

Final Decision: The High Court quashed the impugned permit and issued directions to the Municipal Corporation to inspect the constructions made by the 3rd respondent afresh within a period of three months from the date of receipt of this order and identify the illegal constructions and encroachments in respect of ground and 1st to 3rd floors made by the 3rd respondent which are not in conformity with the statutory rules. The Municipality shall issue notice to the 3rd respondent calling upon her to rectify the illegal constructions so identified within a period of six months from the date of service of notice. If the defects are not rectified within the period stipulated above, it is open for the municipal Corporation to demolish the illegal structures, it shall be made clear that the 3rd respondent is permitted to construct only on an area of 102 Square Yards and that too for residential purposes only. The 3rd respondent shall pay the fee to the 2nd respondent Municipal corporation treating it as a fresh sanction for ground and three floors without making any adjustments of the fee already paid on the earlier two occasions. The 3rd respondent shall also pay costs of Rs. 4,000/- to the petitioners.