Disposed

Bharat Rashtra Samithi (Brs) Nalgonda v. The State of Telangana

Telangana HC23 Oct 2024WA/1174/2024

Case brief

AI extract

What is this about?

The High Court dismissed writ appeals challenging orders rejecting an application for regularisation of construction and notices for removal of unauthorised building. The Court held that since no building permission was obtained, there is no statutory provision to regularise the construction, and the 2012 Building Rules do not apply. The order imposing costs was set aside.

What did the court decide?

Writ appeals dismissed; order imposing costs of Rs. 1 lakh set aside.

Bharat Rashtra Samithi (Brs) Nalgonda Vs The… — Municipal and Town Planning | Telangana HC (2024)

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[³⁴¹⁸ ]

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IN THE HIGH COURT FOR THE STATE OF TELANGANA AT HYDERABAD

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WEDNESDAY, THE TWENTY THIRD DAY OF OCTOBER TWO THOUSAND AND TWENTY FOUR

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PRESENT

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THE HONOURABLE THE CHIEF JUSTICE ALOK ARADHE AND THE HONOURABLE SRI JUSTICE J. SREENIVAS RAO

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WRIT APPEA L Nos.: 1161 AND 11740F 2024

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WRITAPPEA L NO: 1161 0F 2024:

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writ Appeal under crause 1 5 of the Letters patent preferred Against order Daled 20107/2024 in wp.No. 2s677 of 2024 on the fire of the High court."

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Betvyeen:

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Bhar?t Rashtra Samithi (BRSJ Nalgonda, Rep by Ramavath Ravinder Kumar s/o Shri Kanirar aoed ahorrt 52 yeais Frat No.'20i, onani prio" n6lio"r.i,'il. No. 17-1-388/8 aio c, Sri Laxnii Nagar Coronv, Siilrduo, nvJerr-o-io]^'",' ''

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AND

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...APPELLANT

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1 The State of Telangana, Rep its principal Secretary, Ivlunicipal Administration and urDan uevetopment Secretarjate Hyderabad.

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1. The D.iskict Collector,. Nalgonda District At trtalgonOa. 3. The M.unicipal Commissioner, Nalgonda Municipality At Naloonda. 4. The brre rnspector Otficer, Nalgonda Municipality Nalgonda.

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.RESPONDENTS

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lA NO: 2 oF 2024

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Petition under section 1s'l cpc praying that in the circumstances stated in the affidavit filed in support of the petition, ih" Hlgl, Court may b; ;|",;;1" stay all further proceedings incruding the demorition of the ouirorng i=., rrna admeasuring Ac. 1-00 Gts., in sy. Nos. r 498 and 'r 506 situated ,i r.rrigono, Village and Mandal, Nalgonda District and to direct the authorities to not takl any coercive steps pending disposal of the above Writ Appeal.

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Counsel for the Appe[ant: SRI p. SRI RAGHU RAM, SR. COUNSEL REp. FOR SRI V. MALLI BABU

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Counsel for the Respondent No.1 AND 2 : SRI A. SUDARSHAN REDDY,

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Counsel for the Respondent No.3 & 4: SRI B. JAGAN MADHAVA RAO

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WRITAPPEA L NO: 1174 oF 2024:

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WritAppealunderclause15oftheLettersPatentfiledagainsttheorder Dated 14108/2024^{in writ petition No 22042of 2024 on the fil: of the Highcourt.}

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Between:

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Bharat Rashtra Samithi^{(BRS) Nalgonda,Rep-by Ramavath Ravinder Kumar} Ilo*Snri r.ro.i7-r-:a8lB rcunilrr "ged a"C^{sri indut Sl Laxmi Nagar Colony, Saidabad, Hyderabad'yeais F_lat No. 20i, Dhani Pride Residency,H.}

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...APPELLANT

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AND

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I The State of Telangana,^{Rep its Principal secretary,l/lunicipal Administration} and Urban Develoflment^{Secretariate Hyderabad'}

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2 The District Collector,^{NalgondaDistrictAt Nalgonda'}

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3 The Municipal Commissioner,^{Nalgonda Municipality} 'At^Nalgonda'

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4 The Site lnspector^{Officer, Nalgonda MuncipalityNalglonda}

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...RESPONDENTS

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IA NO: 1 OF 2024

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Petition under section^{151 cPCprayingthat in tl-re cirt;umstances stated} in the affidavit filed^{in supportof the petition,the HighCourt tnay be pleasedto} stay att further^{proceedings includingthe demolitiono.i the building i.e., land} al*ea.rring Rc.^{t -OO Cts-in Sy. Nos. 1498 & 1506 situatedat Nalgonda Village} & IVlandal, frtltgonda^{District and to direct the authoritiesto not take any coercive} steps^pending disposal^{of the above Writ Appeal'}

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CounselfortheAppellant:SRIP.SRIRAGHURAM,SR'COUNSELREP'FOR

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SRI V. MALLI BABU

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Gounsel for the^{Respondent No.1: SRI A. SUDARSHANREDO'Y'}

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ADVOCATE GENER/\L^/

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GP FOR MUNICIPAL^{ADMINISTRATION &} URBAN DEVELOPMF:NT

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Counsel for the^{Respondent No.2:GPFOR REVENUE} Counsel for the Respondent^{No.3 & 4: SRI B' JAGAN MADHAVA RAO}

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The Court delivered^{the following:COMMON JUDGMENT}

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THD HON' BLE THE CHIEF JUST ICE ALO K ARADHE AND THE HON'BLE SRI JUSTIC E J.SREENIVAS RAO

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WRIT APPEAL Nos.l1 61 AND lt74 oF 2024

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COMMON JUDGMENT i (Per the Hon'ble the Chief Justice Atok Aradhe)

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Mr. P.Sri Raghu Ram, learned Senior Counsel appears for Mr. V.MaIli Babu, learned counsel for the appellant.

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Mr. A.Sudarshan Reddy, learned Advocate Genera_l for the State

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Heard on the question of admission

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W.A.No.t161 of 2024 has been hled against the order dated 18.O9.2024 passed by a learned Single Judge W.P.No.25677 of 2024, whereas W.A.No. tIZ4 of 2024 has been lrled against the order dated 14.08.2024 passed in W.P.No.22O42 of 2024. On account of similarity of issues involved in both the appeals, they were heard analogously.

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Facts giving rise to hting of these appeals briefly stated are that the appellant in both the appeals is a Registered political Party which has its headquarters at Hyderabad and office at District Headquarters, Nargonda. The erstwhiie Government of

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, l

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Telangana vide^{G.O.Ms.No.167, Revenue (Assn-l) I)epartment'} dated 16.0S.2018^{andG.O'Ms'No'66, Rr:ventre(Assn-l)} Department dated^{21.06.2019 allottedland m':asur-ingAc'1'00} in survey Nos.1498^{and 1506 situated atJ\algcnda Village} (subject plot) in favour^{of the appellalt for cont;trucLion of parby} office for a consideration^{of Rs.4,84'OOOI-'}

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The appellant^{madepayment of the aforesaid amount and} possession of the^{subjectplot was handedover: to the appellant} on 24.06.2019.^{Admittedly, the appeliant raised corrstructionof} a permanent^{structure,namely a two-storeyedbuilding and a} huge wall which^{is temporaryin nature,without obtainingarly} buiiding permission^{from the MunicipalCorpc'ration'Nalgonda'} After the buiiding^{was constructed, the appellarrt:;ubmitted an} application to^{the District Collector, Nalgonda rmd the Municipal} Commissioner,^{Nalongda Municipality requesting for} regularisation^{of the structure.}

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The Site Inspector,^{Nalgonda Municipalityrnspectedthe} premises of the appellant^{and found that th e structureon} western and northern^{side does not havethe requiredsetbacks} and recommended^{therejection of theapplication'The} Municipal^{Commissioner,Nalgonda, Municipality by an order}

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dated 20.O7.2024 rejected, the application seeking regularisation of the construction. Thereafter, a notice dated 20.07. 2024 was issued under Sections 17B(6) and fia$) of the Telalgana Municipalities Act, 20 19 (hereinafter referred to as .the 20 19 Act'), to the appellant to remove unauthorised construction within a period of fifteen days, failing which it was directed that the same shall be removed by the Nalgonda Municipality.

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7 . The appellant thereupon filed a writ petition, namely W.P.No.22O42 of 2024 in vvhich validity of the order dated 2O.O7.2024 passed by the Municipal Commissioner, Nalgonda Municipality, was questioned. The appellalt further sought a direction in the writ petition that the Municipal Commissioner, Na,lgonda Municipality be directed to consider the application for regularisation of construction

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The appellant filed another writ petition, namely W.p. No. 25677 of 2024, in which the validity of notice issued under Section 178(6) and fia$l of the Telangana Municipaiities Act, 2019 dated 20.07.2024 by which the appellant was asked to remove the unauthorised construction, was assailed.

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The learned Single Judge by an order daterl 14.08.2024^tn W.P.No.22O42 of 2024 inter alia held that the appeliant did^not seek any building permission before raising crtnstruction of^the building. It was further held that the construction was^made without obtaining any building permission. in complete disregard of the Building Bye-laws. It was furlher^held that^the Municipal Commissioner, Nalgonda Municipality has rightly rejected the application submitted online for^grar t^{of building} permission in respect of an already existing building.^However, liberty was reserved to the appellant to take^{recourseto such} remedy as may be availabie to it in law.^{Acc:ordingly,the writ} petition was disposed of.

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The learned Single Judge by an^{orderdeLted..8.09.2024in} W.P.No.25677 of 2024 inter alia held that the^{app':llantinstead} of resorting to the remedy^{prescribed to} it und,:r^{th': statute, had} filed the writ petrtion and it was not^open for^{it to questionthe} consequential action of issuing notice in^{pursir.ranoeof rejection} of application for building^permission. It^was' further^{held that} the appellant is guilty of abuse of^process of^{law. The learned} Single Judge, therefore,^{dismissed the writ pe:titionby imposing} -" " * "*'/ =*t

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costs of Rs.I lakh which was made payable to the District Legal Services Authority, Nalgonda.

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In the aforesaid factual background, these appeals have been frled.

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Learned Senior Counsel for the appellant, at the outset, fairly submitted that the 2Ol9 Act does not contain any provision permitting the Municipality to regularise any unauthorised construction. It is further submitted by him that the construction of the building was made by the appellant without seeking any building permission. our attention has been invited to Rule 5 of the Telangana Buiiding Rules, 2012 (hereinafter referred to as .the 2O 12 Rules,) and it has been contended that the deviation in the setback is permissible under the Ruies. It is also submitted that the application seeking regularisation of the construction submitted by the appellant has been rejected on the touchstone of the criteria laid down in tn.e 2012 Rules. It is submitted that the deviation is miniscule and the sarne can be compounded by the Authority by imposing suitable terms and conditions. It is contended that the impugned order dated 20.07.2024 passed by the Municipal

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Commissioner,^{NalgondaMunicipalitybe set asirie and the} matter be remitted^{to the MunicipalCommis:sioner, Nalgonda} Municipality to^{clecide the application afresh in the light of the} mandate contained^{in Rule 5 of the 2012 Rules It irs stated that} incase,thisCourtremitsthemattertc'tht:Municipal Commissioner,^{Nalgonda Municipaiity, the appt:llall is willing to} deposit the amount^{of costs directedto be Cepo:sited by the} learned Single^Judge.

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1 3. On the other^{hald, the learned Advor:ateGeneralhas} submitted that^{the 2012 Ru1es have no applicatio.e to the fact} situation of^{the case as the 20 12 Rules apply1'o tht: personwho} obtains a builcling^{permission under the Rui':sand raises the} constmction in^{deviationof the Rules It is further submitted} that the appellant^{has raised the constmctic'nof the buiiding} without obtaining^{any buildingpermissiort' Therefore' the} application^{seeking regularisationof the construction has rightly} been rejected.^{In support of the submission, learned Advocate} General has^{placed relianceon the Full Ben ch dt:cisionof the}

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Andhra Pradesh High Court in g ACES, Hyderabad IIS Municipal Corporation of Hyderabadr

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We have considered the submissions made on both sides and have perused the record. In pratibha Cooperative Housing Society Limited vs. State of Maharashtraz, the Supreme Court took note of increasing tendency of raising unlawful constructions and encroachment in the entire country and held that such activities are required to be dealt with firm hards. It was further held that such unlawful constructions are against the public interest. A Full Bench of the Andhra pradesh High Court in 3 ACES (supra) has laid down the following guidelines:

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"1) In cases where applications having been duly filed in accordalce wrth law, after fulfilting all requirements, seeking permission to construct buildings and permission was also granted by the corporation, the power of demolition should be exercised by the Corporation only if the deviations made during the construction are not in pubiic interest or cause public nuisance or hazardous or dangerous to public safety including the residents therein. If the deviations or violations are minor, minima_l or trivial which do not affect public at large, the Corporation will not resort to demolition.

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1. Whatever is stated in guideline number ( I) will also equally apply to the permissions deemed to have been granted under Section 437 of^-The Ac1',.

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'^1994SCC OnLine Ap 176 : 1995 (1) ALD I

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AIR 1991 SC 1453

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1. If no application^{has been filcdseekingpermisrsion zmd the} Constructionismad.ewithoutar'rypermissionwhlltsoerer,itis open to the^{Corporationto demolish and pull dorx"rt or remove} the said ut'rauthorised^{structurein its discretion Otherwise'} having regard^{to the facts and circumstancesof ttre case' it wili} be putting^{a premium on the unauthorised constructiort'}

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When tLre Corporation^{comesto the conclusion' keellingthe} above^{guidelines in view, that the construction :n qur:stion is} required to^{be demolished or pull down, itshor-rld followthe} procedure rndicated^bclow:

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Thc clemolition^{should not be resorted to rlurinllfestival} (i) days declared^{by the StateGovernmentas publicholidays} excluding^{Sundays-If thefestivalday declared bythe} Government^{as a publicholiday falls on a Sunday'on that} Sunday also,^{the Corporation shouldnot resort t() demcliLion'}

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(ir) In any case,^{there should not be any dr:molition after} sun set and^{beforesun rise'}

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(iii) The Corporation^{should give notice ofdemolitionas} required bY^{the statute fi-ring the date of demolitionEvenon} the said date,^{beforeactually resortingto the rlemolLtion' the} Corporation^{should give reasonabletime'deperLdinguponthe} premises sought to^{be demoiished,for the inmal.es to withdraw} from the^{premises:If withinthe time giventhe inmates do not} withdrarv, the Corporation^{may proceedwithactual demolition'} These guidelines^{are laid down in view of thr: fact that the} Corporation is a^{publicauthority and its action must be tested} on the touchstone^{of fairness and reasonablenes;s'"}

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In^{the instant cases,the appellanta'lmittedly had not} obtained^{any buildinilermissionfront ttLe Municipal}

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commissioner, Nargonda Municipality. The constructron of the building was made without obtaining any building permission. Thereafter, an application seeking regularisation of the construction raised by the appellant was made. It is not in dispute that there is no provision either under the 2019 Act or Rules made under the 2Ol9 Act, which permit the Municipality to regularise the illegal construction already made. In the absence of any statutory provision, the appellant has no right to seek regularisation of the construction which has already been made. The Telangana Building Rules, 2012 permit regularisation of construction made in violation of the building permission. The aforesaid Rules have no application to a case where the building permission is not obtained at all. The action of the Municipal Commissioner, Na_lgonda Municipality is in consonance with law, which does not call for any interference in these intra court appeals.

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For the aforementioned reasons, we do not find any ground to differ with the conclusion arrived at by the learned Single Judge. However, in the facts ald circumstances of the case, the direction with regard to imposition of costs of Rs. 1 lakh on the appellant, which was made payable to the District Legal Services

Authority, Nalgonda,^{is set aside. To the aforesaidextent, the}

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orders passed by the^{learned Single Judge in !V'P'Nos'22O42of} 2024 and 25677^{of 2024 are modified.}

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In the result, the^{u'rit appeals are drspost:d of. There sha-Il}

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be no order as to^costs.

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Misceilaneous^{petitions,pendingif any, strall s:and closed}

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SD/.K. SHYL HI DEPUTY REGIS R

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//TRUE COPY// SECTION O ICER

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To.'"'1. Th" principal secretary, Municipal Administration and Urb,an Development, ' it" siri"'"iTelanganl, Secretariate Hv9gt?Q'o

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Z. ffre Oistrict^{Collect"or,Nalgonda District At Nalgondzr'}

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i'd; M;;i;,pir^{comrnisiio"ner, NalgondaIr/unicipali'.At Nalgonda'}

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;. iil; 5iG^{i;SpeCtor otrrcer, NqtS.oqng Nlunicipalitv^Nzrlsonda'} d. o;; cC^{io -dnt v. IvlALLl BABU' Advocate-[o.PUCl}

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one cc to^{SRrB. JAb;i!-MXDhAVa nno,agYqgqlg} Lqrygl^... ;. i;; ccsi" cp roi^{rr,tuNidtpAl AD-MlNlsrRATloNANDURBAN} ' O'iVif-bpfrrrENT, Hiqh Court for the State of Telangana- [OUT].

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