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2007 (2) ALT 410 (D.B.)
IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD
G.S. SINGHVI, C.J and C.V. NAGARJUNA REDDY, J.
Y. Jyothirmoy and others - Petitioners.
Versus
Municipal Corporation of Hyderabad, rep. by its Commissioner and another - Respondent.
W.P.No.17597 of 2006
Decided on 19-1-2007.
Advocate appeared
Mr. P. Giri Krishna, Advocate for the Petitioners.
Smt. G. Jyothi Kiran. Standing Advocate for MCH for Respondent No.1.
None appeared for Respondent No.2.
Andhra Pradesh Regularisation of Unauthorised Constructions in Municipal Corporations, Municipalities and Urban Development Authorities Act, 2003 – Section 679-E –Urban Land (Ceiling and Regulation) Act, 1976 – Andhra Pradesh Land Reforms (Ceiling on Agricultural Holdings) Act, 1973 – Andhra Pradesh Municipalities Act, 1965 – Andhra Pradesh Urban Areas (Development) Act, 1975 – Section 12(2), 59(1) ,15– Constitution of India – Article 226 – Article 21 – Municipal Corporation Act, 1959 – Karnataka Town and Country Planning Act, 1961 – Andhra Pradesh Town Planning Act, 1920 – Municipal Corporations Act, 1955 – Section 679-E, Section 636, 452 ,15 – Illegal Construction – Petitioners, who purchased different portions of building have filed this petition for quashing notice dated issued by Commissioner, requiring them to demolish/remove/pull down the unauthorised construction not covered by the sanctioned plan within 24 hours of the date of receipt of the notice – Commissioner of Municipal Corporation vide his order accorded permission to the applicants for construction of cellar, ground plus three upper floors – However, building was constructed in violation of the sanction accorded by the Commissioner – Thereafter, different portions were sold to the petitioners and others by registered sale deeds and almost the entire building was put to commercial use and named as Amrutha Business Complex –Held, Court hold that notice issued by Commissioner requiring petitioners to demolish/remove/pull down unauthorised construction in cellar of Amrutha Business Complex does not suffer from any constitutional or legal infirmity – Issue which remains to be considered is whether the alternative prayer made by petitioners for award of damages should be accepted – According to petitioners, they had purchased shops etc. under a bona fide belief that the construction had been made in accordance with the sanctioned plan – In a way, they have been exploited by respondent No.2, who took law into its hands, made construction in the cellar in utter violation of the sanctioned plan and then sold constructed portions to the innocent persons – Court have no doubt in our mind that if the petitioners had been made aware of the fact that the construction made by respondent NO.2 was illegal, they would not have purchased the same – It is, therefore, an appropriate case in which the Court should, while enforcing the rule of law, direct the wrong doer to compensate the wronged – The principle that polluter must pay, which is usually invoked in the cases involving degradation of environment and ecology, deserves to be applied by the Court with some modification in the cases of illegal and unauthorised constructions –Thereafter, the Commissioner of the Corporation shall ensure demolition of the illegal/unauthorised construction made in the cellar of Amrutha Business Complex – Writ Petition Dismissed
The petitioners, who purchased different portions of the building known as Amrutha Business Complex, Ameerpet have filed this petition for quashing notice dated 22-8-2006 issued by Commissioner, Municipal Corporation of Hyderabad (hereinafter referred to as the Commissioner) under Section 636 of the Hyderabad Municipal Corporations Act, 1955 (for short, the 1955 Act) requiring them to demolish/remove/pull down the unauthorised construction not covered by the sanctioned plan within 24 hours of the date of receipt of the notice with the threat that if they fail to do so, Municipal Corporation of Hyderabad (for short, the Corporation) will take action and demolish/pull down such construction and also recover expenditure from them.
The background facts:
(i) Sri Y.S. Rajesh Reddy, son of Sri Y.S. Anand Reddy, Sri K. Sudhakar Reddy, son of Dr. K.L. Reddy, Ms. K. Sunitha Reddy, daughter of Dr. K.L. Reddy and Sri Y.S. Anand Reddy, son of Sri Y.S. Konda Reddy purchased property measuring 1650 square yards bearing premises No.7-1-58 (old No. F-1-58) situated at Ward No.7, Block No.1, Ameerpet, Hyderabad from the original owners through separate registered sale deeds. They surrendered 380 square yards for road widening purpose and then entered into a development agreement with M/s. Amrutha Estates (Developer), a registered partnership firm for re-development of the property by constructing cellar, ground plus three upper floors residential building.
(ii) Sri Y. S. Rajesh Reddy and three others through their GPA holder, Sri R. Narasimha Reddy submitted building plan for construction of a multi-storeyed building.
The then Commissioner of the Municipal Corporation of Hyderabad (for short, the Corporation), vide his order dated 27-6-1987 accorded permission to the applicants for construction of cellar, ground plus three upper floors. However, the building was constructed in violation of the sanction accorded by the Commissioner, the provisions of the 1955 Act, Regulation 11 of the Zoning Regulations, 1981 and Regulation 12 of the Multi-storeyed Building Regulations, 1981. Thereafter, different portions were sold to the petitioners and others by registered sale deeds and almost the entire building was put to commercial use and named as Amrutha Business Complex.
(iii) In 1997, the authorities of the Corporation threatened demolition of the construction on the ground of violation of the sanctioned plan and change of use from residential to commercial. Therefore, a suit for perpetual injunction was filed in the Court of Additional Judge, City Small Causes Court cum-VI Senior Civil Judge, City Civil Court, Hyderabad in the name of M/s. Amrutha Estates for restraining the defendant i.e., the Corporation from interfering with possession of the plaintiff. The same was registered as O.S.No.1925 of 1997. It was pleaded that the construction had been completed within three years from the date of issue of sanctioned plan; that the persons who had purchased apartments had shifted their residences and put the premises to commercial use, and that the authorities of the Corporation were trying to demolish the property. In the written statement filed on behalf of the Corporation, it was averred that the construction had been made in violation of the sanctioned plan; that there was change of the user of the suit site; that cellar floor had been converted into shops and offices against the sanctioned plan, and that even before issue of notices under Sections 452, 461 and 636 of the 1955 Act, the plaintiff had approached the Court.
(iv) On the pleadings of the parties, the trial court framed the following issues:
1. Whether the plaintiff has violated the Rules, Building bye-laws, Zoning Regulations of 1981 and deviated from sanctioned plan and permit?
2. Whether the plaintiff changed the user of the property?
3. Whether the plaintiff is entitled for perpetual injunction as prayed for?
4. To what relief?
The trial judge noted that the allegati
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