Dismissed

B. Devender v. The State of Telangana and 3 others

Telangana HC20 Mar 2024WP/9344/2023

Case brief

AI extract

What is this about?

Petitioner challenged a GHMC speaking order directing removal of his ground-floor construction on a 66 sq. yard plot as unauthorized for lacking setbacks and registration under the TS-bPASS Act. The Court held that even plots under 75 sq. yards require online registration and mandatory setbacks, and that additions to buildings require permission under Section 428 GHMC Act, dismissing the writ peti

What did the court decide?

None granted; writ petition dismissed with no costs and pending miscellaneous petitions closed.

B. Devender Vs The State of Telangana and 3… — Municipal and Town Planning | Telangana HC (2024)

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[³¹⁶⁶ ]

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HIGH COURT FOR THE STATE OF TELANGANA AT HYDERABAD (Special Original Jurisdiction)

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WEDNESDAY, THE TWENTIETH DAY OF MARCH TWO THOUSAND AND TWENTY FOUR

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PRESENT

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THE HONOURABLE SRI JUSTICE T.VINOD KUMAR

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WRIT PETITION NO: 9344 OF 2023

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Between:

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B. Devender, S/o. Srinivas, aged 26 years, Occ. Govt. Employee R/o. H. No. 10-5-8251614, lndiralakshmi Nagar, Tukaram Gate, Secunderabad, Telangana - 500017

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...PETITIONER

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AND

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1 The State of Telangana, rep by its Principal Secretary to Govemment, lVlunicipal Administration and Urban Development Secretariat Building, Hyderabad.

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The Greater Hyderabad Municipal Corporation, Rep by its Commissioner, Abids Rd, Hill Fort, Adarsh Nagar, Hyderabad, T.S. - 500063.

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The Greater Hyderabad Municipal Corporation, Rep. by its Deputy Commissioner, Secunderabad Cicle-29, Town Planning Section, Hyderabad.

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B. Narsing Rao, S/o. Mankaiah, aged 78 years, Occ. Retd. Govt Employee, Rl/o. H. No. 10-5-751, Sai nagar, Tukaram Gate, Secunderabad, Telangana - 500017.

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...RESPONDENTS

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Petition under Article 226 of the Constitution of lndia praying that in the circumstances stated in the affidavit filed therewith, the High Court may be pleased to issue an appropriate writ order or direction rnore particularly one in the nature of writ of'-Mandamus declaring the action of the Respondent No. 3 in issuing a speaking. order dt.02l01 12023 vide its letter Lr. No. PTs44lClR29{TPS/GHMC 12022 against the Petitioner's house bearing No. H. No.10-5824t6tA, Tukaram Gate, Addagatta, Secunderabad, Telangana, without^properly assessing the allegred deviations, is illegal, arbitrary and violations of the fundamental right of life and liberty^guaranteed under Article 21 and consequently set-askle the speaking order dt.02/0112O23 vide its letter Lr. No. PTs44lClR-

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29ITPS/GHt\4C 12022 iseued by the Respondent No.3 against the Petitioners house bearing No.H. No. 10-5-825/6/4, Tukaram Gate, Addagatta, Secunderabad, Telangana, in the interest of justice in the interest of justice.

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lA NO: 1 OF 2023

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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 Respondent No.3 not take further against the Petitioner pursuant to the speaking order dt.02l01/2023 vide its letter is. No. PT544lCtR-29/TPS/6HMC/2022 against the Petitioner's house bearing No. H. No. 10-5-82516lA, Tukaram Gate, Addagatta, Secunderabad, Telangana, in the interest of justice in the interest of justice.

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lA NO: 2 OF 2023

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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 Respondent No.3 not to take further action in pursuance of the notice dt.2610512023 (received by the Petitioner on 3O10512023) in Lr. No. pT544lCtR29ITPS/GHMC|2O22 againsl the Petitioner's house bearing No H. No. '10-582416lA, Tukaram Gate, Addagatta, Secunderabad, Telangana, in the interest of justice in the interest of justice.

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IAN :3OF 2023

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Between:

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B. Narsing Rqo. S/9, Mankaiah, aged 78 years, Occ. Retd. Govt Emptoyee, !lg.-H.No.^{10-5-751,Sai nagar,Tukaram Gate, Secunderabad, Telangiana-} 500017.

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...PETITIONER/4TH RESPONDENT

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AND

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1 Q.-Qgy,e@er,^{S/o. Srinivas,aged26years, Occ. Govt. ErhployeeFl/o. H. No. 10-} 5-825161A, lndiralakshmi Nagar, Tukaram Gate, Secunderabad, Telangana - 500017

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..RESPONDENTM/RIT PETITONER

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The State of Telangana, rep by its Principal Secretary to Government, [\rlunicipal Administration and Urban Development Secretariat Building, Hyderabad.

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The Greater Hyderabad Municipal Corporation, Rep by its Commissioner,^Abids Rd, Hill Fort, Adarsh Nagar, Hyderabad, T.S. - 500063.

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The Greater Hyderabad Municipal Corporation, Rep. by its Deputy Commissioner, Secunderabad Circle-29, Town Planning Sec{ion, Hyderabad.

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..RESPONDENTS/RESPONDENTS NOS.1 TO 3

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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^{pleased to} vacate the lnterim Order^passed in WP. No. 9344 of 2023,^{dt.O1.06.2023.}

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Counsel for the Petitioner: SRI R. DHEERAJ SINGH

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Counsel forthe Respondent No.1: GP^{FOR MCPL ADMNURBAN DEV}

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Counsel for the Respondent No.2 and 3: SRI K.^{RAVINDER REDDY, SC}

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Counsel for the Respondent No.4:^{MS. VEDULA CHITRALEKHA,}

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The Court made the following: ORDER

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THE HON'BLE SRI JUSTICE T. VTNOD KUMAR

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WRIT PETITION No.9344 of 2023

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ORDER:

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This Writ Petition is hled to declare the action of respondent No.3 in issuing the speaking order dated 02-01-2023 vide letter Lr.No.PT544lCIR-29mSrcLnvIC/2022 against petitioner's house bearing H.No.10-5-824/61 A, Tukaram Gate, Addgutta, Secunderabad, without properly assessing the alleged deviations, as illegal, arbitrary and in violation of the fundamental rights of life and liberty guaranteed under Article 21 of the Constitution of India.

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Heard leamed counsel for petitioner, leamed Govemment

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Pleader for Municipal Administration and Urban Development appearing on behalfofrespondent No.1, Sri K.Ravinder Reddy, leamed Standing Counsel appearing on behalf of respondent Nos.2 and 3, and Ms.Vedula Chitralekh4 leamed counsel appearing on behalf of 4tr respondent, and perused the record. With the consent of leamed counsel appearing for the parties, this Writ Petition is taken up for hearing and disposal.

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J Petitioner contends that he is the absolute owner of subject property by virtue of patta certificate issued by the Govemment

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in favour of his ancestors and are residing^{in the house} uninternrptedly.

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Petitioner further contends that while the^{petitioner is} residing in the aforesaid house, the 4h respondent,^{who has no} locus, had approached the^{respondentauthoritiesand Iodged a} complaint on 04-10-2O22, based^{on which, the 3'd respondent} issued show cause notice^{dated 19-10-2022 allegingthat the} petitioner is making unauthorized^{construction and had erected} steel columns unauthroisedly^{for ground floor at premises} No.l0-5-824/6/A.

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Petitioner further^{contendsthat on beingserved with the} aforesaid notice,^{he has submitted his explanation on20-10-2022} and without considering^{the said explanationin its correct} perspective, the Authorities^{have passedthe speaking orderon} 02-01-2023.

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Petitioner^{further contendsthat the 3'd respondentauthority,} by the aforesaid^{speaking order, had held that he has constructed} ground floor and^{progressing with the constructionwork without} maintaining^{mandatory setbacks as per G.O.No.l68dated} 07-04-2012,^{and furtherdirectedhim to remove,alter or pull} down the deviated Portion.

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It is the further contention of petitioner that the subject building was developed long ago and nothing is modified or reconstructed earlier, but only due to family requirement, he started constructing the said premises with pillar at ground floor, which is admeasuring 66 sq. yards, for which no construction permission is required.

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By stating as above, petitioner contends that the impugned speaking order is arbitrary and illegal.

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Counter-affidavit on behalf of respondent Nos.2 and 3 is filed.

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By the counter-affidavit filed on behalf of respondent Nos.2 and 3, it is contended that the said authorities have received a complaint petition from the 4ft respondent stating that the House bearing No.10-5-824/6/4 situated at Indira Laxmi Nagar, Thukaram Gate stands is in the name of late Sri Mankaiah, who died during the year 2001 intestate; that the 4ft respondent is the legal heir of late Sri Mankaiah; and that the petitioner, who is tenant in the said house, had demolished the old house and commenced the construction without prior permission or intimation to the said respondents and sought for taking action.

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By the counter-affidavit, the respondent authorities fi.rrther contended that the petitioner had commenced constmction of ground floor unauthorisedly by erecting steel columns for ground floor, and for the said reason, the Authorities have issued show cause notice dated 19-10-2022, for which the petitioner had submitted explanation dated 2l-10-2022, and on examining^the said explanation submitted by the petitioner, the Authorities have passed the speaking order dated 02-01-2023 holding the said construction be unauthorized and directed the^{petitioner to} remove the unauthorized construction of ground floor as^the petitioner had failed to produce valid permission for undertaking the said construction.

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Respondent Nos.2 and 3 further contended^{that since, the} petitioner did not undertake demolition by himself, the authorities have demolished the said unauthorized^construction of ground floor on 03-02-2023 and after demolition,^the petitioner had again commenced reconstruction of^ground floor and the same was stopped and demolished the reconstructed ground floor on 20-02-2023 by following due process of law.

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It is the further contention of respondent^Nos.2 and 3 that^as per the provisions of TS-bPASS Act,2020^(for short 'the Act'),

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though no permission is required for undertaking a construction in a plot admeasuring less than 75 sq. yards, the same requires registration to be obtained under Section 7(2) ofthe Act.

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It is the further contention of respondent Nos.2 and 3 that as per G.O.Ms.No.l68 dated 07-04-2012, mandatory setbacks are required to be maintained while undertaking construction and since the petitioner neither obtained registration in respect of the plot admeasuring less thar. 75 sq. yards nor maintained any setbacks, the said construction is to be held as unauthorized and illegal construction

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I have taken note of respective submissions made.

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Section 7(2) of the Act mandates that for plot upto size 75 sq. yards, wherein the construction of ground or ground plus one floor is permitted, does not require any permission, but however, the applicant need to register online with a token amount of Rs.l/- duly self certifying his title, the size of the plot and floors to be constructed.

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Further, this Court by order dated 08-01-2024 passed in

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W.P.No.372 of 2024 held that a reading of Rule 23(b) of the Telangana Building Rules, 2012 (for short^.the Rules, 2012') /

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would show that while an exemption is provided for plot sizes upto 75 sq. yards from taking building permission and obtaining from Occupancy Certificate on completion of construction, the same is in the form of concession. However, Section 7 of the Act and Rules, 2012 mandates obtaining of registration which requires submission of ownership and link document to the site, Geo location of the site to identifu the locction and also plan of the construction proposed to be taken up. It is further held that the non-requirement of obtaining building permission is in the form of a concession whereby registration can be obtained for undertaking construction by payment of Rs.l/- and the second concession being non-requirement of Occupancy Certificate for such construction undertaken.

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Even though, petitioner contends that the subject construction being made by him is only-on a land admeasuring 66 sq. yards, that would not absolve himself from maintaining setbacks as prescribed under G.O.Ms.No.168 dated 07-04-2012, which specifies that mandatory setbacks are required to be maintained while proceeding with the construction even in respect ofplots measuring less than 75 sq. yards.

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Admittedly, in the present case, the petitioner, for the reasons best known, did not take any permission/registration for the construction undertaken by him.

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Though, petitioner claims that he had only undertaken modification to the existing building, it is to be noted that Section 428 of the Greater Hyderabad Municipal Colporation Act, 1955 provides permission to be obtained for addition of any rooms, buildings, outhouses or other structures to any building, and for the said reason, the claim of the petitioner that he has only undertaken modification/renovation works, which does not require any permission, is not a valid defence.

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