HONOURABLE SRI JUSTICE B. VIJAYSEN REDDY WRIT PETITION No.30420 OF 2016 ORDER : (ORAL)

This writ petition is filed by the petitioner seeking to declare the inaction of respondents No.2 to 4 in taking action in respect of the unauthorized and illegal construction of lift and pent house being undertaken by respondent No.5 in the premises bearing H.No.5-8- 505/A/4, Mega Residency, situated at Chirag Ali Lane, Hyderabad, as being illegal, arbitrary and unconstitutional.

2. It is submitted that the petitioner purchased two (2) flats in the 2^nd floor, total admeasuring 1800 square feet, in premises bearing H.No.5-8-505/A/4, Mega Residency, situated at Chirag Ali Lane, Hyderabad under registered sale deed and since then the petitioner along with his family had been residing therein. The building was constructed by one Mr. Sarwar Afzaly in 1996. The foundation laid down by the builder bears structural strength for construction of ground + 2 floors and as per the sanctioned plan there was no provision for construction of lift. Respondent No.5 is having two (2) flats in the ground floor purchased in

1996. The building comprises of ground + 2 upper floors whereas third parties are in occupation of the first floor.

3. It is submitted that respondent No.5 without intimating the flat owners in the 1^st and 2^nd floors and without any valid permission started digging the ground on the south-western side of the flats of the petitioner with an intention to construct lift exclusively for him as he has unauthorizedly and illegally constructed pent house on the terrace. In fact, the terrace rights are vested with all the flat owners with undivided share over the land. Respondent No.5 does not have any exclusive right to construct pent house over the terrace. If respondent No.5 installs lift leading to terrace, it will lead to obstruction of ventilation to the petitioner's flat and it will cause nuisance to the petitioner. In fact, the lift is facing the master bedroom of the petitioner's flat. It is submitted that the structural engineer and the architectural engineer have suggested respondent No.5 as well as the petitioner that if the ground is dug for installation of lift, it would affect the entire building structures. Immediately, the petitioner lodged complaint before the concerned Police but no action has been taken, as such, the petitioner was constrained to approach this Court.

4(a). In the counter affidavit filed by respondents No.2 to 4, it is stated that on receipt of the complaint from the petitioner, the respondent authorities inspected the site and observed that the building was constructed twenty five (25) years ago and it comprises of cellar, ground + 3 upper floors and pent house on 4^th floor. Respondent No.5 and others were proceeding with the erection of lift by digging the earth below 4 feet and erected iron gridders for installation of the lift. The respondent authorities stopped the construction work and disbursed the labourers working in the site. The respondent No.5 submitted representation dated 27.07.2016 before the respondent authorities seeking permission for installation of lift and the same was rejected by letter dated 28.08.2016 issued by the respondent authorities wherein respondent No.5 was directed to stop the construction for installation of lift. Further, respondent No.5 was requested to submit building application through online for process for construction/erection of lift as required under Sections 428 and 433 of the Greater Hyderabad Municipal Corporation Act 1955 (for short 'Act').

4(b). Aggrieved thereby, respondent No.5 filed O.S. No.2072 of 2016 before the learned IV Junior Civil Judge, City Civil Court, Hyderabad (for short 'trial Court') and obtained temporary injunction order in I.A. No.329 of 2016. Meanwhile, the order dated 16.09.2016 in W.P. No.30420 of 2016 (the instant writ petition) was passed by this Court directing the respondent authorities to stop the construction for installation of lift being u