Dismissed

V.G.Rama Krishna, v. Greater Hyderabad Municipal Corporation

Telangana HC24 Apr 2012WP/1413/2012

Case brief

AI extract

What is this about?

This common order dismissed six writ petitions challenging notices issued by the Greater Hyderabad Municipal Corporation to demolish dilapidated structures. The Court distinguished a previous precedent, noting that the lower court had confirmed notices based on expert opinion and evidence. Finding no merit and distinguishing facts from prior cases, the petitions were dismissed but a two-month grac

What did the court decide?

Dismissed with vacation of premises granted within two months.

V.G.Rama Krishna, Vs Greater Hyderabad Municipal… — Land Acquisition | Telangana HC (2012)

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THE HON’BLE SRI JUSTICE G.CHANDRAIAH

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W.P.NOS.1406, 1407, 1408, 1409, 1410, 1411, 1412 AND 1413 OF 2012

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COMMON ORDER

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In all the writ petitions, notice bearing No.169/ACP/C5/GHMC/2009 dated 28.8.2009 issued by the respondent – Corporation in proposing to demolish the buildings bearing H.Nos. 15-7-445 to 455 situate at Begum Bazar, Hyderabad, on the ground that the said structures are in dangerous and dilapidated condition and the consequential order in Lr.No. --/ACP/C5/SZ/GHMC/2012 dated 16.1.2012, in requiring the petitioners to vacate the premises in question, are challenged.

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2. The impugned notice dated 28.8.2009, in all the writ petitions is common and the same reads as under:

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“It is reported that the building bearing H.Nos.15-7-445 to 455 situated at Begum Bazar, Hyderabad is in dangerous & dilapidated condition and likely to collapse at any moment causing danger to the lives of the inmates of the building / surrounding building and the public passing through the road ‘ land on the front / side of the said building. Accordingly, this office has issued the notice U/s 459 of the HMC Act, 1955 by giving (7) days time on dt. 03.03.2009. For which, you have given reply which is not satisfying.

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In this case, the Executive Engineer, PD-I, GHMC have inspected the site on 07.02.2009 and informed that the structures and the walls are having number of cracks and the structure is in dilapidated condition and need to be demolished.

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You are therefore; directed the owner / occupier of the said structures to initiate the action U/s. 456 of the HMC Act, 1955 by demolishing the structures within Seven (7) days. Since, the structures is in dangerous condition and it may collapse at any moment causing danger to the inmates / neighbours and any other problems created due to the said dilapidated structures and the expenses incurred will be recovered in terms of Section 641 of HMC Act, 1955 by you by paying compensation to any person who sustains damage or to any neighbouring building by the execution of the said work.”

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3. Challenging the above notice dated 28.8.2009, petitioners filed municipal appeals on the file of Chief Judge, City Small Causes Court, Hyderabad and the said appeals were dismissed by order dated 17.6.2011 and subsequently, notices in Lr.No. --/ACP/C5/SZ/GHMC/2012 dated 16.1.2012 have been issued requiring the petitioners to vacate the premises in question. The relevant portion of the said notice reads as under:

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“SUB:GHMC – T.P. Section – Circle No. V – Dilapidated and dangerous condition of compound wall and temporary sheds etc – Removal of the dilapidated structure

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intimation – Reg.

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REF: Order of the Hon’ble City Small Causes Court in M.A.No.188 of 2009, Dt:17-06-2011.

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----

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As per the orders passed by the Hon’ble City Small Causes Court vide reference cited, it is to inform you that this office has fixed up program for removal of dilapidated compound wall on Dt.12.01.2012 @ 09:00 AM, consisting to an height of more than 25’.0” for which your temporary structure abutting to the said compound wall. It may damage during the course of demolition.

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Therefore, you are requested to vacate the room (temporary sheds) as this office was already served notices to you under Sections 456 and 459 of HMC Act. So as to safeguard the any untoward incidents, during the course of demolition of compound wall within (24) hours from receipt of the said notice, if any incident happen during the course of demolition you will be held personally responsible for the cost and consequences thereon.

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4. Challenging the above notices, the present writ petitions have been filed.

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5. The case of the petitioners, in all the writ petitions, is that their families are in long standing possession of the property bearing municipal numbers mentioned in the impugned notice at Begum Bazar, Hyderabad for the past century and as their immediate neighbours, who are respondents 4 and 5, are disputing their title, they filed suits in O.S.Nos.273 to 276 of 2009, 288 of 2009 to 289 of 2009 on the file of I Senior Civil Judge and VI Senior Civil Judge, City Civil Court, Hyderabad for declaration. While so, the official respondents 1 to 3 issued notice under Section 456 of Greater Hyderabad Municipal Corporation Act, 1955 (for short ‘the Act’) bearing no.169/ACP/C5/GHMC/2009 dated 28.8.2009, alleging that the houses in which they are living, are in dangerous condition and sought for removal. Aggrieved by the same, they filed Municipal Appeals on the file of Chief Judge, City Small Causes Court, under Section 654 of the Act, and after contest, the said appeals ended in dismissal by order dated 17.6.2011. However, their case is that subsequently, the authorities kept quiet for some time and all of a sudden, in the month of January, 2012 have come to the premises of the petitioners and asked them to vacate. In the writ petitions, the petitioners made averments attributing motives to the respondents, and as they are not required for adjudication for these writ petitions, they are not being noted. Now aggrieved by the action of the respondents in asking the petitioners to vacate the premises, in which they are living, the present writ petitions have been filed.

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6. In the counter affidavits filed by the official respondents 1 to 3, in all the writ petitions, while denying the averments made in the writ affidavit, it is stated that one

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Dr.Qayyum Khan Sanozei made representations to these respondents stating that his mother is the co-owner of H.Nos.15-7-433 to 444 including the various tenants and the said property is in dilapidated condition, posing threat to inmates and passers-bye. The said tenants, including the petitioners, have made illegal constructions on the said dilapidated structures and sought to take necessary action in the matter. The officials of the respondents have inspected the above premises and found the same in dilapidated condition and further the Executive Engineer, PD1, GHMC have inspected the site on 7.2.2009 and informed that the structures and the walls are having number of cracks and the structures are in dilapidated condition and needs to be demolished and recommended for issuance of notice to the said buildings, as it may collapse at any time. Therefore, on 3.3.2009, a notice was served on the occupants, including the petitioners under Section 459 of Act and subsequently another notice under Section 456 of the Act on 28.8.2009. Challenging the said notices, the appeals in M.A.Nos.188, 189, 190, 191, 192, 193, 194 and 195, of 2009, were filed on the file of Chief Judge, City Small Causes Court, Hyderabad and eventually by order dated 17.6.2011 the said appeals were dismissed and thereafter, the respondents have issued the notice dated 16.1.2012 informing the petitioners that the respondents have fixed the programme of removal of dilapidated wall on 12.1.2012 at 9-00, consisting of height of more than 25 feet, for which the temporary structures of the petitioners were abutting the said compound wall and, therefore, sought the petitioners to vacate the temporary structures. But the petitioners filed the present writ petitions and obtained interim orders of status quo. With these averments the writ petitions were sought to be dismissed.

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7. The unofficial respondents 4 and 5 filed vacate petitions in all the writ petitions and in counter affidavits filed to the said vacate petition it is stated inter alia that the petitioners constructed sheds on the wall of the respondents 4 and 5 abetting towards the road. The wall is part of the old Devdi constructed more than 100 years back, belonging to the respondents 4 and 5 and the said huge wall was constructed with mud and heavy stones and the same is now in dilapidated condition. The petitioners have encroached upon a piece of land and constructed temporary sheds over the wall of these respondents 4 and 5 and started living. As the wall has become old and is in dilapidated condition, the GHMC authorities issued notices under Section 456 and 654 of the Act and challenging the same, petitioners filed municipal appeals and by order dated 17.6.2011, the same ended in dismissal and therefore, the officials respondents by issuing the notice dated 16.2.2012, sought the petitioners to vacate the premises for demolition of the wall.

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With these averments, the writ petitions are sought to be dismissed.

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8. No reply affidavits have been filed by the petitioners.

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9. The learned counsel appearing for the petitioners contended that the petitioners are in possession of the above premises for more than 100 years, and when there was dispute from the respondents 4 and 5, they filed suits for declaration and the same are pending. The premises in which the petitioners are living are in good condition and there is a wall dividing the old wall and the premises of the petitioners. The old wall, which is said to be in dilapidated condition, is not correct and only in order to see that the petitioners are vacated, the official respondents at the behest of the respondents 4 and 5, issued notices and though municipal appeals were dismissed, there is no further appeal and the respondents keeping quiet for long period after the dismissal of the municipal appeals, all of a sudden sought the petitioners to vacate and the same is illegal and without giving opportunity to the petitioners and during the pendency of the suits for declaration of title, the impugned notices cannot be sustained. Relying on the judgment of a learned single Judge of this court in GEMINI PRINTERS v. MUNICIPAL CORPORATION OF

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[1] HYDERABAD , he contended that the officials of the Corporation have to give notice to the owners or occupiers of unsafe building stating the defects thereof and requiring them to make necessary repairs or improvements or to remove the building or any portion thereof. In the present cases, no such opportunity was given. Hence, he sought for setting aside the impugned notices.

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10. The learned counsel appearing for the official respondents and the respondents 4 and 5, in all the writ petitions, reiterating the averments made in the counter affidavits, sought for dismissal of the writ petitions.

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11. In view of the above rival contentions, the point that arises for my consideration is whether the impugned notices are not sustainable and liable to be set aside?

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12. Certain admitted facts are required to be noticed. The petitioners are admitting living in the above noted premises and the said premises are just abutting the old wall, belonging to the respondents 4 and 5. The respondents 4 and 5 gave representation to the official respondents stating that the said wall is in dilapidated condition and sought for its demolition. In pursuance of the said representation, the official respondents issued notices to the petitioners under Sections 459 and 456 of

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the Act. The said provisions are extracted as under for better appreciation:

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456. Removal of structures, trees, etc., which are in ruins or likely to fall:

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(1) If it shall at any time appear to the Commissioner that any structure (including under this expression any building, wall parapet, pavement, floor, steps, railing, door or window frames or shutters or roof, or other structure and anything affixed to or projection from or resting on, any building, wall, parapet or other structure) is in ruinous condition or likely to fall, or is in any way dangerous to any person occupying, resorting to or passing by, such structure or any other structure or place in the neighbourhood thereof, the Commissioner may, by written notice, require the owner or occupier of such structure to do one or more of the following things, namely:-

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(i) to pull down, (ii) to secure, (iii) to remove, or (iv) to repair such structure or thing, and to prevent all cause of danger therefrom.

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(2) The Commissioner may also, if he thinks fit, require the said owner or occupier by the said notice, either forthwith or before proceedings to pull down, secure, remove or repair the structure or things, to set up a proper and sufficient hoard or fence for the protection of passersby and other perswons, with a convenient platform and hand-rail, if there be room enough for the same the Commissioner shall think the same desirable, to serve as footway for passengers outside of such hoard or fence.

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(3) If it appears to the Commissioner that the danger from a structure which is ruinous or about to fall is imminent, he may, before giving notice as aforesaid or before the period of notice expires, fence of,, take down secure or repair the said structure or take such steps or cause work to be executed as may be required to arrest the danger.

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(4) Any expenses incurred by the Commissioner under sub-section (3) shall be paid by the owner or occupier of the structure.

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(5) (a) Where the Commissioner is of opinion whether on recept of an application or otherwise that the only or the most convenient means by which the ownwr or occupier of structure such as is referred to in sub-section (1) can pull down, secure, remove or repair such structure, is by entering any of the adjoining premises belonging to some other person the Commissioner after giving such person a reasonable opportunity of stating any objection mayh, if no such objection is raised or if any objection which is raised appears to him invalid or insufficient, by an order in writing, authorize the said owner

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(b) Every such order bearing the signature of the Commissioner shall be a sufficient authority to the person in whose favour it is made, or to any agent or person employed by him for this purpose, after giving to the owner of the premises reasonable written notice of his intention so to do, to enter upon the said premises with assistants and workmen, at any time between sunrise and sunset, and to execute the necessary work.

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( c ) In executing, any work under this section as little damage as possible shall be done to the adjoining owner’s property, and the owner or occupier of premises for the benefit of which the work is done, shall --

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(i) cause the work to be executed with the least practicable delay;

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(ii) pay compensation to any person who sustains damage by the execution of the said work.

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459. Opportunity for stating objections:--The Commissioner shall issue a notice under sub-sections (1) and (2) of Section 456, sub section (1) of Section 457 or sub-section (1) of Sectiion 458, after giving the owner or occupier, as the case may be, a reasonable opportunity of stating any objection and adducing evidence, if any, and after being satisfied that the objection which is raised is invalid or in sufficient.

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13. A reading of the above provisions makes it clear that Section 456 empowers the Commissioner to direct the person to pull down by a notice in writing or secure, remove or repair any structure which is dangerous. Section 459 enables the Commissioner to give opportunity to the owner or occupier to file objections.

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14. The official respondents in the light of the above provisions, issued notices dated 3.3.2009 under Section 459 of the Act, calling for objections and subsequently notices dated 28.8.2009 under Section 456 of the Act, seeking the petitioners to remove the structures. Challenging the said notices, the petitioners filed municipal appeals. In the counter filed by the official respondents, reference is made with regard to appeals in M.A.Nos.188, 191 and 194 of 2009 on the file of Chief Judge, City Small Causes Court, Hyderabad, under Section 654 of the Act to declare the said notice dated 28.8.2009, as null and void. For better appreciation, points framed in M.A.No.188/2009, are being extracted as under:

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1. Whether the building bearing door Nos.15-7-445 to 455, situated at Begum Bazar, Hyderabad are in dangerous and dilapidated condition and likely to collapse at any moment causing dangerous to the lives of the inmates of the building?

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2. Whether the impugned notice dated 28.8.2009, is illegal and is liable to be set aside?

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15. In the said appeal, both the counsel appearing for the parties, sought the court to seek an expert’s opinion from the institute of Engineers, Khairtabad and accordingly, court addressed a letter, seeking opinion on the following issues:

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1. Whether the wall adjoining to the back side of the rooms of appellant and other persons is in dilapidated condition and is liable to be removed immediately?

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2. Whether the roof/beams of the appellant and other persons are resting on the wall adjoining to the backside of the room of appellant and other persons?

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3. Whether any damage will be caused to the rooms of the appellant and other persons in case the adjoining back side wall of the rooms of appellant and others is ordered for demolition.

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4. Whether the rooms in which appellant and other persons are residing are in dilapidated condition or in good condition?

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16. Pursuant to the said letter, one Sri S.Venkateswara Rao, Technical Expert from the Panel, Institute of Engineers, Khairtabad, Hyderabad, submitted his report, and the relevant excerpts, noted by the trial court are as under:

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“The premises of appellant and some other persons were found constructed by a back side wall just touching the century old wall belonging to respondents 4 and 5. The roof was laid over beams erected on this back side wall in some rooms and on side walls in other rooms. No gap was maintained between the old wall of about 25 feet height and the rooms of the appellants. The century old wall proved to be structurally safe all these years and now crossed its life of expectation, which is normally 100 years in terms of engineering. It is suggested to remove the wall which is in dilapidated condition instead of attempting repairs since such wall will not increase the life of the wall further. The wall if continued in the present condition may cause severe damage to the adjoining rooms of appellant when instantaneously crumbled/fallen due to heavy rains or gales. If century old wall is ordered for demolition, the damages are inevitable to the rooms of appellant since, no gap was available between the rooms of appellant and the old wall of the respondents 4 and 5.”

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17. Based on the above, report, the trial court confirming the impugned notice dated 28.8.2009, dismissed the appeal.

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18. From the above material it cold be seen that the structures of the petitioners are abutting the old wall of the respondents 4 and 5, which is about 25 feet height and which is of more than 100 years old. As sought by both the parties, the trial court has sought the opinion of a technical expert and the said opinion is extracted above. The expert has categorically opined that the old wall which is 25 feet height is in dilapidated condition, since it is more than 100 years and crossed its life of expectation and the repairs to the said wall, will not increase its life further and that if the same is continued, it may cause severe damage to the adjoining rooms of the petitioners, because due to heavy rain or gales, the wall may instantaneously crumble or fall. Further, he also opinioned that the petitioners and some others were found to have constructed a back side wall just touching the century old wall belonging to the respondents 4 and 5 and the roof was laid over the beams erected on the back side in some rooms and on side walls in other rooms and no gap was maintained between the old wall of about 25 feet height and the rooms of the appellants.

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19. It is to be noticed that the above expert was appointed by the trial court at the request of both the counsel and it appears that no objections were filed to the said report. Based on the material available on record, the trial court confirmed the impugned notice dated 28.8.2009 and thereafter, the respondents issued another

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notice dated 10.1.2012 requesting the petitioners to vacate the premises, for demolition, as in the process of demolition, it may cause damage.

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20. Therefore, when the trial court confirmed the impugned notice dated 28.8.2009, by appreciating the evidence available on record and also based on expert’s opinion and recorded findings of fact that the wall in question is dilapidated condition and has to be removed, and that if the said wall is continued, it may cause severe damage to the adjoining rooms of the petitioners, this court under writ jurisdiction, cannot interfere with the said finding of fact, and come to the different conclusion, without there is being any contra evidence. Further, the petitioners were given sufficient opportunity to put forth their case and the trial court based on the expert’s opinion and the evidence, dismissed the claim of the petitioners and hence, contention that the petitioners were not given sufficient opportunity or notices under the relevant portions, cannot be sustained and the judgment relied on in this regard, cited 1 supra, is not applicable to the facts of the present case. The issue framed, is answered in the negative.

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21. For the foregoing reasons, I do not find any merit in the writ petitions and they are dismissed. No costs.

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22. Having regard to the submissions made by the learned counsel for the petitioners, learned Standing Counsel for the respondents 1 to 3 and also the learned counsel appearing for the unofficial respondents and having regard to the predicament in which the petitioners are placed, two months time is granted from the date of receipt of a copy of this order, for vacating the premises in question, for taking necessary action by the municipal authorities in accordance with law.

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AVS ----------------------------------JUSTICE G.CHANDRAIAH

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DATE: 24--04—2012

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[1] 2007(4) ALT 215

V.G.Rama Krishna, v. Greater Hyderabad Municipal Corporation

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V.G.Rama Krishna, v. Greater Hyderabad Municipal Corporation

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