Partly allowed

Kanithi Bhagyalaxmi v. The State Of Telangana

Telangana HC28 Nov 2024WP/23138/2024

Case brief

AI extract

What is this about?

The High Court set aside the impugned revocation order dated 23.05.2024 and show cause notices issued by the HMDA and Municipal authorities. The Court held the order illegal as it was passed without considering the applicant's explanation and arbitrarily expanded the FTL of a tank, violating principles of natural justice and Article 14. The matter was remanded to the HMDA to act after proper notic

What did the court decide?

Impugned revocation order of 23.05.2024 set aside and matter remanded to HMDA to consider explanation dated 01.04.2024 after issuing notices and affording opportunity to all concerned within 4 weeks.

Kanithi Bhagyalaxmi Vs The State Of Telangana — Land Acquisition | Telangana HC (2024)

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[³¹⁶⁸ ]

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HIGH COURT^{FORTHE STATEOF TELANGANA} AT HYDERABAD (Special Original Jurisdiction)

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THURSDAY,THE^{TWENTY EIGHTHDAY OF NOVEMBER} TWO THOUSAND^{ANDTWENTYFOUR}

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PRESENT

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THE HONOURABLE^{SRIJUSTICEK.LAKSHMAN}

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WRIT PETITION^{NO:23't38 OF 2024}

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Between:

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Kanithi Bhaqvalaxmi, Kanithi Bhaqvalaxmi, Wo^{Kanithi Ravi Teja, Aged3O yrs, Occ Pvt' Employee-yrs, Occ Pvt' Employee-Pvt' Employee-Employee-}

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Kanithi Bhaqvalaxmi, Kanithi Bhaqvalaxmi, Wo^{Kanithi Ravi Teja, Aged3O yrs, Occ Pvt' Employee-yrs, Occ Pvt' Employee-Pvt' Employee-Employee-} ' .'il;'H. G:i- liq,ii Gudem,iNear UP'School, Vel6galeru, Maruteru' West bodavari, Andhra^{Pradesh- 534122.}

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F;Jd,'R;ftJn^{aauu, Slo p"odiRajeshwarRao, Aoed 45 vrs occ Pvt}

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E;;;y;;, i6 n,trc- s-2, rlt iroor, sii-dii r'riuas, lvlavuri-Nagar, HUDA colonv' Miyapur, Hyderabad.

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a. ffeimlirinuri Ravi^{Kumar,S/o HemmanuriVenkataramaiah.'} LOed.31^yrs'Occ

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ijr]r-rri" Ernpiov"", nyo H. No. 23- 5812- 2, High School Street, Punganur' Chithoor, Andhra^{Pradesh- 517247-}

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a iliiiiJ-Cr,iiinanva, Slo^{Raiula Krishna Murali, Aged. 30- yrs' occ} .Software Eniolovee. R/o H.^{No.2-1 13, Choutupalle, Kammarpalle,NlzamaDao'-}

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1. e'di',;i: 5*i^{siinirr.,slo sii Ganga'dasinilut<a'Aged 28 vrs, occ software} " E;'pI;;";, E ; n. No. z ii, Cnf|iiwitsot, waisoltalan, Sirikonda Mandal' Nizamabad.

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Sunorani enaskar^{Rao, Sio Sandra RoniBabu,Aged 34 yrs' occ Pvt'} Emolovee. RJo Flat^{r.ro. rOi, Sri SiiRiteshEnclave,SriVani Nagar' Road No'} 3. Cocir Cola Road,^{Miyapur, Hyderabad.}

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,. S';;;hiK;ti,iparii,^{6io KothlapalliCJranlra} .Rao.^{and Bolishetti Bhaskra} ' F;;"k"ti,, nidJ5a irs, occ Emplbvee, R/o Flat No.102, Sreenidhi Naravana' Hnit coiri""v, noadNo.^{16, Amdenpur, Sanga Reddy o'ttt't'...r=r,,oNERS}

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AND

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1 . The State Of^{Telangana, Rep. by its PrincipalSecrelary'..Municipal} nii,inidlrrtion and^{UrbinO'evetopmeritDepartmerit,Secretariat, Hyderabad,} T. S.S.

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T. S.S.

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1. if,J st"t. of^{Telangana, Rep. by^ its Principal Secretary' lrrigation} Deoartment, Secretariat,^{Hyderabad' I s'} fiEt;it,;;i;isi"sl^{Rino'v-District,office or collectorate, sansa. Reddv',}

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4 . tii; [;;;il;o^{rr,rdttoporitahbLvel6pment Authoritv,} fleo^b.y i]s^Metropolitan Cominl"sioner, Swarriaiayantni^{Coriplex, 4th flooi, WestWing' Ameerpet'} Hyderabad.

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ttie Tanasildar,^{Ameenpur mandal, Sanga Reddy District'} tr. ii;; A;;il;;t e*u"rlir"^{rngineer''lrrigalion sectlion,Ameenpur'sanga} Reddv District.

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il;X;;;;ili Municipalitv,^{Rep.bv its Commissioner, Ameenpur' Sanga} Reddv District.

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8 . il;iiy;;;;bA^{Disaster ResponseandAssetProtectionAgencv'Rep bv its} Convenor, Hyderabad. ...RESPONDENTS

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Petitron under^puricre 226 of the constitution of rndia praying that in the circumstances stated in the affidavit filed therewith, the High court may be pleased to !ssue a writ, order or direction, more particularly one in the nature of wRlr oF MANDAT,4us decraring, revocation order passed by the 4th respondent dated 23-05-2024 vide No. 003200/8plHtnDNO644t SKp/2023 (copy not furnished to petitioners) in revoking the permission to construct residential building consisting of stilt (plus) s upper floors situated at plot bearing numbers 203 East (part) and 204 admeasuring 400 sq. yards forming part of sy. Nos. 1g2, 183, 184, 185, 186, 187, 188 and 1g9 of Ameenpur Town and Mandal, Sanga Reddy District vide vide Building permit Order vide File No. 003200/BP/HMDN0644 lsKPl2o23 dated 15- 04- 2023, purportedly under the guise of falling under Fu Tank Level of Ameenpur pedda cheruvu. which limits are not finalized yet, and the consequentiar show cause notices of demolition dated 15- 06- 2024 and 26- 06- 2024 issued by the 7th respondent, withour any enquiry and without following due procedure, as being illegal, arbitrary, unconstitutional, in violation of principles of natural justice and in violation of Articles 14,21 and 3004 of constitution of rndia and consequenfly set aside the revocation order dated 23 - 0s- 2o24 as well as the notices dated 1s- 06- 2024 and 26- 06- 2024 of the 7th respondent with a direction to the respondents not to demolish or obstruct the constructions in the above said residential prot and arso direct the respondents not to interfere with the rights of the petitioners in respect of the said building

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IANO:1OF2 024

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Petition under Section 'r51 cpc praying that in the circumstances stated in the affidavit filed in support of the petition, the High court may be preased to direct the respondents not to demorish, interfere or obstruct the constructions in the plot bearing numbers 203 East (part) and 204 admeasuring 400 sq. yards forming part of Sy. Nos. 182, 183, 184,^.185, 1g6, 187, 188 and 189 of Ameenpur Town and Mandal, Sanga Reddy District by suspending the revocation order passed by the 4th respondent dated 23.0s.2024 No. 003200/BpiHMDA/0644

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ll I )

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ISKPl2[z3(copy^{not furnishedto petitioners) pending disposalof the abovewrit} petition

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Counsel^{for the Petitioners:SRI'ANUGANTI PRANEETH} t#Lrtl3'lTElT"t'"counser^{ror the Re spond entN o. 1 :} " t IiS llJllil

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counser^{f or the Respondent Nos''""*"JJ3rilXft!"lXPX} o tr.toP^{M ENr}

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3&5: AGP^{FOR REVENUE} Counsel^{for the ResPondent Nos'}

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: SRI V.^{NARASIMHAGOUD' Sc} Counsel^{for the Respondent No'4}

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Counsel^{for the Respondent No'7:SRIKRISHNA REDDY PUTTA' SC} Counsel^{for the Respondent No'8:SRI KATIKARAVINDER REDDY'SC} The Court^{made the following:ORDER}

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HON'BLE SRI JUSTICE K. LAKSHMAN

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WRIT PETITION No.23138 OF 2o.24

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ORDER:

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Heard Sri Anuganti Praneeth, learned counsel for the petitioners, learned Assistant Government Pleader for Municipal Administration and Urban Development for respondent No. 1, learned Assistant Government Pleader for Irrigation and Command Area De.i,elopment for respondent Nos.2 and 6, learned Assistant Government Pleader for Revenue for respondent Nos.3 and 5, Sri V. Narasimha Goud, learned standing counsel appearing for respondent No.4, Sri Krishna Reddy Putta, learned standing counsel appearing for respondent No.7 and Sri Katika Ravinder Reddy, learned standing counsel appearing for respondent No.8. Perused the record.

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Petitioners are purchasers of flats in a residential building constructed on Plot Nos.2O3 East (part) and 204 admeasuring 40O sq.yds. forming part of Sy.Nos. L82 to

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189, situated at^{Ameenpur Village, AmmenpurMandal} and Municipality.^{The vendors ofpetitioners have} executed. a^{registered Development Agreement-cum-} General Power of^{Attorneyinfavour of M/s'SR} Constructions,^{a registered Partnership Firm, in respect} of subject^{property for constructionof building' They} have obtained^{Building permit order dated L5'O4'2O23} under TS-bPASS^{for construction of 1 Stilt + 5 Upper} floors. They have^{completed the construction strictly in} accordance with^{the said Building permit order' There is} no deviation.

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3 While the matter^{stood thus, respondentNo'4 has} issued a show^{causenotice dated 23'03'2024 to the} developer of^{the building,alleging that respondentNo'3} vide letter dated'^{27.02.2024informed the Tahsildar'} Ameenpur Mandal^{has submitted that the Assistant} Executive Engineer,^{Irrigation Section, Ameenpurhas} addressed a letter^{informing that BV Infra FirstStep} Constructions^{and SR Constructions are constructlng}

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high raised br-rildings in Sy.No. 185 of Ameenpur Village and Mandal, which falls under FTL of Pedda cheruvu of Ameenpur Viliage. On enquiry, it is found that they have obtained HMDA permissions without NOC from Irrigation Department,, wherein, subject land falls under FTL/Buffer zone of Pedda cheruvu in Sy.No.185 of Ameenpur Village and Mandal. Further, respondent No.3 was requested to address a letter to HMDA, Hyderabad for cancellation of HMDA permissions issued in favour of SR constructions and BV Infra First Step Constructions ln Sy.No.185 of Ameenpur Village and Mandal, flor violating the Irrigation Rules.

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It is further stated in the said show cause notice that on receipt of letter from Irrigation Department, once again, Joint Inspection has been conducted and made confirmation that 8O%o of the structure falling under FTL/Buffer zone. Show cause notices were also issued to SR constructions and BV Infra. Therefore, Building \ \ permission in Plot Nos.78 and 79 consisting of 1 Stilt + 5

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Upper floors in Sy.Nos. Ig2 to 1g9 situated at Ameenpur Village and Mandal, Sanga Reddy District obtained by the petitioners is falling in Water Body FTL ald Buffer zone area of Pedda cheruvu. Therefore, ten (1O) days time was granted to the petitioners to submit explanation. The vendors of the petitioners and developer have submitted explanation dated O1.O4.2O24 and also filed a writ petition vide W.p.No.5371 of 2024 and this Court granted interim order. The said interim order is subsisting and the said writ petifion is pending. Without considering the said explanation, respondent No.4 issued Revocation order dated 23.O5.2024. Further, respondent No.7 issued show cause notice dated 15.06.2024 and also order dated 26.06.2024 under Section ITg of Telangana Municipalities Act, 2olg directing the petitioners to remove the residential building consisting of flats of the petitioners. Challenging the sarne, petitioners frled the present writ petition.

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--.1i.::--x:*!F- ..&!,.--.- - - .;-.,t,&"ifliKl:i&:;*tt''.

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Respondent No.4 frled counter contending that as per Zonal Development Plan (ZDPI of Ramachandrapurarn Zone Segment approved by the Government vide G.O.Ms.No.353, dated 30.05.1980, the layout of plots in Sy.Nos. I82 to 189 is not falling under FTL/Buffer zone. Hence, based on the ZonalDevelopment Plan, the layout permission was issued. Respondent No.4 approved residential building permission consisting of Stilt + 5 Upper floors in respect of subject property. The same was forwarded to respondent No.7 Municipality through TS-bPASS, vide letter dated 15.O4.2023 for releasing the same. The aforesaid Plot Nos.203 East part and 2O4 in Sy.Nos. l82 to 189 of Ameenpur village are part of approved hnal layout vide Lr.No.239O/MP2lPlg/ HUDA/2003, L.P.No.45/MP2IHUDA/2006, dated 09.09.2OO5. Prior to issuing of Building permission, respondent No.4 verified the notified Master PIan of FIUDA-2O2L of Ramachandrapuram Segment approved by the Government vide G.O.Ms.No.288, MA & UD, dated

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l il

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O3.O4.2OOB, notified la_kes Cadastral Mrp of pedda cheruvu (vide ID No.1200/N/00rg) and a_lso verified the Village Map obtained from Department of Survey and Land Records, centrar Survey office. It was observed that the plots under reference are not affected under any FTL or Buffer of pedda Cherur.rr. Therefore, Building permission was issued. Thereafter, they have received a letter dated 27.02.2024 from the District Collector, Sangareddy District stating that the Tahsildar, Ameenpur Mandal has submitted that the Assistant Executive Engineer, Irrigation Section, Ameenpur has addressed a letter stating that the subject property is in FTL/Buffer zone and after obtaining NOC from Irrigation Department, the developer of building has to get Building permission order through TS_bpASS, whereas, the developer did not obtain the same. The construction of building by the petitioners is in Sy.No. 185 and go%o of the said structure is failing under FTL/Buffer zone.

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Thereafter, respondent No.4 has issued a show cause notices calling for explanation from the Building permission applicant i.e. M/s. KSR Homes and issued Revocation order dated 23.O5.2O24. Therefore, there is no error in the Revocation order.

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The aforestated facts would reveal that even as per respondent No.4, the subject property was not falling in FTL/Buffer zofle. Therefore, Municipality has issued Building Permit order dated I5.O4.2O23 on considering the proceedings dated 15.04.2023 of respondent No.4. Now, the entire action including issuance of show cause notice and revocation order is based on the letter addressed by the Irrigation Department.

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The Asst. Executive Engineer, Irrigation Section, Ameenpur-Respondent No.6 has filed counter stating that Pedda Cheruwu, Ameenpur is a HMDA notified tank with tank ID. l2OO-34 on 2O.O3.2O17. On demarcation of FTL/Buffer zone of the tank, it is seen that the subject

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plots a-re falling in FTL of the said tank. As per G.O.Ms.No.168, MA& UD Department, dated 07.O4.2OI2 and Telangana Irrigation Act, 1357 Fasli, no building /development^activity shall be allowed in the Full Tank Level (FTL) of any lake pond, Cheruvu or Kunta/Shikham lands. They have also enclosed sketch of the pedda Cheruvu. Therefore, vendors/developer of the petitioners obtained Building permit order without NOC from the Irrigation Department. A case in Crime No.85 of 2024 was registered against the Developer of the subject property for the offences punishable under Section 447, 427 of IPC and Section 3 of PDPPA.

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In R. K. Enclave Plot Owners Association vs. State of Telanganal, this Court considered interference of Irrigation and Revenue departments deliberately claiming that the plots belonging to members of the petitioners society therein are in the Full Tank Level and water body i.e. Sy.Nos.143, 146 and 150 of pedda

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'^{2o2t ALD qqg}

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cheruvu in Ameenpur village. This Court also considered Master plan and proceedings of HMDA, dated 2l-O7-2OO7 that the subject property therein was regularized by HMDA, fixing of FTL boundaries, joint inspection conducted, etc. and also Memoirs in respect of subject tank and held that total water spread area upto the FTL of Ameenpur tank (Pedda cheru'ru and Kotha cherrvu) is Ac.465.OO gts., the Ayacut of Peddacheruvu tank is said to be 777 acres. This Court also considered F"TL map of Pedda cheruvu of Ameenpur Village and Mandal, contentions raised by HMDA, Tahsildar and District Collector concerned, the principle laid down by it in Cogent Ventures (Indian) Ltd. v. State of Telangana and others2. Considering Memoirs prepared by the Irrigation Department for the Pedda cheru'ur-r tank, this Court obserwed that the water spread at FTL of the said tank is Ac.93.15 gts. only. The s€une are old records prepared by the Irrigation Department and bind the said

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'zots 1o;^{eLo 3z:}

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Department. With the said observations, this Court held that respondents not only suppressed the said material, but they deliberately increased the FTL spread exorbitantly to 465 acres without any basis, with the result that area which was earlier not part of the water spread area of the tank, like the properties of the petitioners, ca-rne within the FTL to the serious disadvantage of the petitioners and other iand owners in the said Survey Numbers and the FTL of a tank cannot be changed arbitrarily from time to time depending upon the whims and fancies of the respondents. The respondents grossly exaggerating the water spread area of Pedda cheruvu (contraqr to the Memoirs of Pedda cheruvu tank maintained by the Irrigation Department itself), the respondents are tryrng to cover not just Ac.93.15 gts. but a huge extent of Ac.465.00 gts.

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This Court also considered the counter filed by Revenue Department that the obstructions for free flow of water in FTL and buffer area exist because of gravel and

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boulders. Such obstructions €ue not proved by the respondents to have been made by the petitioners at all. Officials also admitted that sluice gates are kept closed and are only operated when farmers demand irrigation and that the rveir on the right flank to the Pedda cheruvu tank has not been in use since long back. By closing the sluices, it is obvious that the bund height and weir are increased. It is the duty of the respondents therein to keep the drains and sluices of the Pedda cheruvu tank operational so that there is no flooding at any point of time and the excess water gets drained without submerging any land. With the said observations, this Court held that there was a rodd in Sy.No. 149 of Ameenpur viilage

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Sri V. Narsimha Goud, learned standing counsel appearing for respondent No.4 produced copy of G.O.Ms.No.129, dated 18.O9.2024, vtherein, the Government has constituted a Committee called 'Lake Protection Committee' for the entire area within Outer

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Ring Road and covering Osman Sagar and Himayath Sagar twin lakes. As per the said G.O, Commissioner, HYDRAA is the Chairman and there are 18 Members and it is for the Committee to act in accordance with the guidelines issued for fixing FTL points and earmarking buffer zone. The subject property is within the Outer Ring Road. Therefore, respondent No.4 will submit a report to the Commissioner, HYDRAA and he has to consider the sarne.

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Though respondents are contending that a^joint rnspectron was conducted, they have not put the petitioners on notice and afforded them an opportunity. While conducting joint inspection, there is no consideration of explanation dated O1.O4.2O24 submitted by the Building permission applicant 1.e. M/s. KSR Homes to the show cause notice dated 23.03.2024 and the Revocation order dated 23.05.2024 was issued. Therefore, considering the said aspects, this Court vide order dated 23.08.2024 directed the respondents not to

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take any precipitative action against the petitioners

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herein.

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In the light of the aforesaid discussion, this Court is of the considered view that there is no considet.ation of the aforesaid aspects by respondent No.4 in the impugned Revocation order dated 23.O5.2024. Therefore, the impugned Revocation order dated 23.05.2024 of respondent No.4 is liable to be set aside and it is accordingly set aside. The matter is remanded back to respondent No.4 with a direction to consider the explanation dated O1 .O4.2024 submitted by the Building permission applicant i.e. M/s. KSR Homes/petitioners to the show cause notice dated 23.03.2024 and pass appropriate orders strictly in accordance with law by putting the petitioners, Irrigation Department, Municipal authorities and Revenue authorities on notice and affording them an opportunity. Respondent No.4 shall complete the said exercise within a period of four (4) weeks from the date of receipt of copy of this order. Till

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\ \

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then, respondents are directed not proceed further

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against the petitioners pursuant to the show cause notice dated 23.03.2024.

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L4. Perusal of recorcl would reveal that in respect of land falling under Ameenpur chemvu including pedda cheruvu and Kotha cheruvu, Irrigation Department has issued only preliminaqr notification earmarking FTL. Fina-l notification ,,r,as not issued. Respondent No.4 shall consider the said aspects while passing orders afresh. Even respondent No.8 i.e. the Commissioner, HYDRAA sha-ll also consider the aforesaid aspects before taking any action against the petitioners herein.

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Accordingly, this writ petition is disposed of. There

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shall be no order as to costs.

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As a sequel thereto, miscellaneous petitions, if any,

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pending in the Writ Petition shall stand closed.

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To,

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SD/- S. MALLIKARJUFA RAO ASStSTANTSEgtSTRAR //TRUE COPY// secrN/orrrcen

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1 . The Principal Secreta ry, Municipal Administration and Urban Development Department, Secretari at, Hyderabad, T. S The Principal Secretary, lrri gation Department, Secretariat Hyderabad, T. S

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43 The Collector, The Metropolitan Sanga CRommtsstoner,eddy Diskict, Office of Hyderabad Collectorate,Metropolitan Sanga DeveloRedd pmentv Atnhority, rpet,

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Hvderabad Swarnajayanthi Compl ex, 4th floor, West Wing, ^r"

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--r ,-,$n

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s. f6e rJhaJitoar, Ameenpur^{mandal, Sanga Reddy District}

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6- The Assistant Executive^{Engineer,lriigationSection, Ameenpur,Sanga} Reddy District.

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The iommissioner, Ameenpur^{Municipallty, Ameenpur, Sanga ReddyDistrict.} 8. The Convenor, Hyderabad^{Disaster Response andAsset ProtectionAgency,} Hyderabad.

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