Disposed

Joseph Paul Fernandes v. The Principal Secretary to Government

Telangana HC7 Apr 2022WP/6876/2022

Case brief

AI extract

What is this about?

This Court disposed of a writ petition questioning official inaction regarding unauthorized construction. The Court directed authorities to act on setback deviations after receiving explanations, rather than dismissing the petition immediately.

What did the court decide?

Direction to official respondents to take appropriate action on setbacks after receiving explanations from unofficial respondents.

Joseph Paul Fernandes Vs The Principal Secretary to… — Property and Title | Telangana HC (2022)

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HIGH COURT FOR^{THE STATE OF TELANGANA AT HYDERABAD}

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(SPecial Original Jurisdiction)

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THURSDAY ,THE^{SEVENTHDAY OF APRIL} TWO THOUSAND^{AND TWENTY TWO}

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PRESENT

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THE HONOURABLE^{SMT JUSTICELALITHAKANNEGANTI}

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WRIT PETITION^{NO: 6876 OF 2022}

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Between:

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1 Joseoh Paul Fernandes,^{s/o late J.M.Fernandes Agedabout60 years,occ'} A;-Ji;;;. .ir'3:5'.ie7,^{Firi Nolia, a Block, Renuka shaktiApartments' opp'}

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Ahrrtiy, Vidya^{Bhavan King Kothi, Hyderabad}

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2 Robin Mukesh,^{s/o tvlichel aged about 34 Years, occ. Pvt Employee,r/o,3.5.} ;9,i.'iA-N; i'rii,^{e Eirocx, -Renrii st'attiApartments, opp Bhartiva Vidva} Bhavan^{King Kothi, HYderabad}

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...PETITIONERS

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AND

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l.ThePrincipalsecretarytoGovernment,MunicipalAdministrationDepartment tetangand State^{Secr6tariat, Hyderabad}

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2.TheCommissionerandDirectorMunicipalAdministrationandU.D.Dept.' A.C. Guiards,^HYderabad

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The Greater^{Hyderabad Municipal Corporation' Rep by its Commissioner'} near Tank Bund^HYderabad

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The Chief City^{Planner, Greater Hyderabad Municipal CorporationNear Tank} Bund HYderabad

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The Zonal^{Commissioner SecunderabadZone' Greater Hyderabad Municipal} " d;ir;;;ii;;AiW".t Maedpallv Man Road, near citv Civil Court Secunderabad^-26

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6- The Zonal Citv^{Planner Central Zone, Greater Hyderabadlvlunicipal} Corporation^{KhairtabadHyderabad}

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T.TheDeputyCommissioner,GreaterHyderabadlvlunicipalCorporationCircle No 16, Abids^HYderabad

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B. The Assistant^{City Planner,, Circle No 16 Greater Hyderabad Municipal} Corporation Abids'^HYderabad

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Mohammed^{Younus, s/o not knownto Petitioners, aged Major, occ. Business,} .r/o^{3-5-799, King Kothi,Hyderabad}

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l0.Mohammed^{Areif, s/o not knownto Petitioners, aged Major, occ. Business'} r/o 3-5-799,^{King Kothi, HYderabad}

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1'1 . Mohammed Munaf, s/o not known to^{Petitioners, aged Major, Occ. Business,} r/o 3-5-799, King Kothi, Hyderabad

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l2.Mohammed Ahmed, s/o not known to Petitioners, aged^{Malor, Occ.Business,} r/o 3-5-799, King Kothi, Hyderabad

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...RESPONDENTS

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Petition under Article 226 of lhe Constitution of^{lndia praying that in the} circumstances stated in the affidavit filed therewith, the^{High Court may be} pleased to issue a Writ Order or Direction more Particularly in the nature of MANDAMDUS Declaring the inaction on the^part of the^{respondentsmore} particularly in action on the part of the 7th and Bth respondents in taking against illegal and unauthorized constructions making by^respondents 9 to^{12 on the} property bearing Municipal Door No 3-5-799 situated at King Kothi beside cosmos bank Hyderabad by violating Building Regulations,^{without leaving set back etc,} without obtaining necessary^permission from the Greater^{Hyderabad Municipal} Corporation Hyderabad having received the on line complaints^{daied 10-12-2021} , 17-12-2021, and written complaint dated 2-12-2021 as being^{lllegal, Arbitrary,} Capricious, Malafide, amounts to dereliction of duties,^{not only Contrary to the} Various Provisions of Greater Hyderabad Municipal Corporation Act but^also contrary to G.O. Ms. No 565 Municipal Administration^{Departmentdated4-1 1-} 2006, and Violative of various Judgments rendered by this Hon'ble Court.

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lA NO: 1 OF 2022

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Petition under Section 151 CPC^praying that in the circumstances statedⁱⁿ the affidavit filed in support of the^petition, the High Court may^{be pleasedto grant} interim directions directing the respondents 3 to B to initiate action against the respondents I to 12 for stopping of illegal construction over the^property bearing Municipal Door No 3-5-799 situated at King Kothi Hyderabad forthwith on the online complaint made by the^petitioners dated 10-12-2021 ,17-12-2021 and written complaint made on 2-12-2021 .

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IANO:2 OF 2022

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Petition under Section^'1 51 CPC praying that in the circumstances stated in the affidavit filed in support of the^petition, the High Court may be^pleased to stay of illegal constructions making on the premises bearing Municipal Door No.3-5-799 situated at King Kothi Hyderabad raising by respondents 9lo 12.

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lA NO: 3 OF 2022

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Petition under Section 151 CPC praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased to direct the respondents 3 to 8 authorities to lodged a complaint before the concerned Police Authorities for registering a criminal case against respondents 9 to 12 for their illegal constructions as contemplated Under Section 46'1 (4) and in pursuance of the Judgment rendered by this Hon'ble Cou( reported in 2016 (4) ALT 786.

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IA NO: 4 OF 2O22

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Petition under section^{'151CPC praying that in the circumstances statedin} the affidavit filed^{in support of the peiition, tne Hign Court maybe pleased.to} appoint a Commissioner^{to note down the physical featuresby inspectingthe} plJp".tv u"uring lvlunicipal^{Door No 3_5-799 situatedat KingKothi Hyderabad to} arrive ai^just conclusion^{in respectof illegal constructions'}

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lA NO: 5 oF 2022

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Between:

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1 Mohammed Younus,^{s/o not knownto Petitioners, aged:Major, occ.Business,} r/o 3-5-799, King^{Kothi, HYderabad}

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It/ohammed Areif,^{s/o not knownto Petitioners, aged :Major, Occ Business'} r/o 3-5-799, King^{Kothi, HYderabad}

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3 Mohammed^{Munaf, s/o not knownto Petitioners, aged:Major,occ. Business,} r/o 3-5-799, King^{Kothi,HYderabad}

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4 tr/ohamrned Ahmed,^{s/o not knownto Petitioners, aged:Major,occ. Business,} r/o 3-5-799, King^{Kothi' HYderabad}

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...Petitioners/Respondents^{I to1 2}

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AND

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Joseoh Paul^{Fernandes,s/o late J.M. FernandesAged about 60 years,occ'} E"r"#;;!, il^{e:5-7e7,-FiaiNolr+, e Block, Renuka-ShaktiApartments'opp'} ehirtiya Vidya^{Bhavan King Kothi,Hyderabad}

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Robin Mukesh, Robin Mukesh,^{s/o lvlichel lvlichelaged about 34 Years, occ. Pvt Employee, r/o,3-5-Years, occ. Pvt Employee, r/o,3-5-occ. Pvt Employee, r/o,3-5-Pvt Employee, r/o,3-5-}

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Robin Mukesh, Robin Mukesh,^{s/o lvlichel lvlichelaged about 34 Years, occ. Pvt Employee, r/o,3-5-Years, occ. Pvt Employee, r/o,3-5-occ. Pvt Employee, r/o,3-5-Pvt Employee, r/o,3-5-} " ?6i. Fi;t M r'rb, a eroii, "nenria shakti Apartments, opp' Bhartiva vidva Bhavan King^{Kothi, HYderabad}

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... ResPondents/Petitioners

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3.ThePrincipalsecretarytoGovernment,MunicipalAdministrationDepartment Telangana State^{Secretariat' Hyderabad}

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The commissioner^{and Director Municipal Administration and U.D. Dept.'} A.C. Guiards, HYderabad

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The Greater^{Hyderabad Municipal Corporation, Rep by its Commissioner'} near Tank Bund^HYderabad

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6.TheChiefCityPlanner,GreaterHyderabadlVunicipalCorporationNearTank Bund HYderabad

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' 7'rheZonalCommissionerSecunderabadZone,GreaterHyderabadMunicipalCoiporaiion AiWest Maedpally Man Road, near City Civil Coutl Secunderabad^-26

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B. The Zonal^{City Planner Central Zone, Greater Hyderabad Municipal} Corporation^{KhairtabadHyderabad}

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,'' Ll

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The^{Deputy Commissioner' Greater Hyderabad Municipal CorporationCircle} No 16 Abids^HYderabad

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10.The Assistant^{City Planner,, Circle No 16 Greater Hyderabad Municipal} CorPoration^{Abids,HYderabad}

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. Respondents/ResPondents

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Petition under^{Section151 CPC prayingthat in the circumstances stated in the} .ttio*ii^{iir"a i" supportot ine petitibn,-thi} lisl^{Court mavbe pleased to vacate} tnubrO",^{dated1'1.02.2022 intNP 6876 of 2022'}

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Counsel for^{the Petitioners:SRl'M'MEHDI HUSSAIN}

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Counsel for^{the Respondent No's' 1&2: GP FOR MCPL ADMNURBAN DEV} Counsel for^{the Respondent No's'3 to 8: SRI' N'ASHOKKUMAR (SCFOR} GHMC)

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Counsel^{for the Respondent No's'9 to 12:SRl' A'VENKATESH}

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The Court ,"d"^{th" following:ORDER}

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THE HON'BLE SMT. .'USTICE LALITHA KANNEGANTI

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WRIT PETITION No. 6876 OF 2022

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ORDER:

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This Writ Petition is filed questioning the inaction on the part of the official respondents, more^particularly Respondents 7 and 8 against the illegal and unauthorized constructions carrying out by Respondents 9 to 72 on the property bearing Municipal Door No. 3-5-799 situated at King Koti, Hyderabad by violating building regulations without leaving setbacks and without obtaining necessary^permission from the Greater Hyderabad Municipal Corporation,^Hyderabad in spite of the representations made by the^petitioners. 2. Learned counsel for the^petitioners Sri M.^Mehdi Hussain submits that the unofficial^{respondents,who are} neighbours of the petitioners, without^{leavingany setbacks and} without obtaining necessary^permission from^{the Greater} Hyderabad Municipal Corporation are^{proceedingwiththe} construction in the above-said^{property. It is stated thatthe} petitioners have given several representations on^lO.l2.2O2l, 17 ,12.2021 and, O2.12.2O2^{1, but the samewerenot considered} by the official respondents.^{It is also stated that due to the} illegal constructions and digging^{and excavation works taking}

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place, the apartment of the petitioners is in danger and is vibrating and the residents are feeling insecurity. Learned counsel submits that the official respondents, who are dutybound to act on the representations, failed to take any action and taking advantage of the same, the unofficial respondents are going ahead with the illegal construction. He submits that in spite of issuance of G.O.Ms.No. 565, dated 04.ll.2006 pursuant to the orders of this Court in Writ Petition No. 2000 of 2006 dated 27.1O.2006, the official respondents are not passing orders on the representations of the petitioner and are letting the unofficiai respondents to continue the unauthorized construction.

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Learned Stalding Counsel for the respondent Corporation Sri Pasham Krishna Reddy filed the detailed counter-affidavit. He submits that the unofficial respondents have obtained building permission from Zonal Oflice, Secunderabad on 28.11.2020 for construction of stilt + four floors with condition of executing mortgage deed with 10% of the built up area and the same should be released after obtaining occupancy certilicate. He submits that at present, stiit floor slab is laid and columns raised for 1"t floor and the unofficial respondents did not construct aly additional floor than

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permitted and left setbacks at site but the setbacks are in deviation to the permitted setbacks, hence, the Corporation issued a notice to the 8m respondent to rectify the setbacks in tune with the permission accorded. Learned Standing Counsel submits that once the Corporation receives reply from^the unofficial respondents, they will take appropriate action.

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Sri A. Venkatesh, learned counsel for the unofficial respondents submits that the unofficial respondents^have started construction after obtaining necessary^{permissionand} when they are going ahead with the^same, the^petitioners approached this court and obtained interim^{order and the} construction is stalled. He submits^{that even without verifying} whether tJ e unofficial respondents obtained^{permissionor not,} the petitioners approached this Court.^{He submits that at least} the petitioners did not^{make any effort to file an Application} under the Right to Information^{Act and obtain the details and} straight away, have come to this Court.^{He relied on the order} passed by this Court in Sged Ameer^{All a. Commissloner,} Greater Hgderabad Munlclpal^{Corporatlonl,wherein, in} paragraph 4, it has been observed^{as under:}

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" 4, Having regard to the facts^{of the case,as} asserted, one thing that^{emerges from the writaffidavit is that}

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I 2019(3) ALD 294 Crs)

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the petitioner had not made any effort to approach the authorities by invoking the^provisions of the Right to lnformation Act ar1d seeking information as to whether the 4th respondent has obtained any permission before making construction or^not. ln the absence of the said assertion, this Court is not inclined to entertain the writ petition, as it is not for this Court to act on every representation without there being any corresponding obligation on the part of the petitioner to place the compelling material for this Court to act. As a large number of^{casesday in} and day out are being liled by simply writing a letter to^the Municipal Corporation and thereafter, compl4.ining within^two (02) weeks that such letters are not being acted upon, this Court desires that any individual before approaching the Court necessarily have to give due diligence and ascertain the factual aspects, particularly in relation to the complaints of inaction^on the part of the respondent authorities. One of the objectives that is sought to be achieved through the Right to Information Act^is to ensure that a citizen is made available with the information^as a matter of right. In the present case, the petitioner having not made such effort, the writ petition can be closed by^giving him liberty to approach the Municipal authorities and obtain^the information as needed and thereafter, make a complaint to^the respondent authorities bringing to their notice the said facts to take appropriate action. It is only thereafter, they can^approach this Court."

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He submits that the petitioners approached this Court by misrepresenting the facts, hence, the Writ Petition is liable to be dismissed with exemplary costs.

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The case of the petitioners is that the unofficial respondents are continuing with the construction without any permission and without leaving setbacks. The Corporation has

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filed the counter-affidavit stating that they have granted permission to the unofficial respondents and they are carrying out the construction in accordance with the^permission. However, as far as setbacks are concerned, it is stated that the Corporation has issued notice to the unofficial respondents^to rectify the same. Hence, it appears that the^{petitionerswithout} even verifying whether the unofficial respondents^{have obtained} permission, approached this Court and stalled the entire construction activity. These types of Writ^{Petitionsshall be} dismissed with costs for causing the opposite^{partya huge loss.} 6. However, in the facts and circumstances of^the case, the Writ Petition is disposed of directing^{the official} respondents to take appropriate^{actionon the deviationmade} with regard to the setbacks after^{receivingexplanation from the} unofficial respondents in accordance^{with law' There shali be} no order as to costs.