T N KAMBATI Vs. STATE OF ANDHRA PRADESH

JUDGEMENT

(1.) This petition by certain flat-builders is for the issue of a writ in the nature of certiorarised mandamus to strike down Bye-laws 23 and 24 of the Hyderabad Municipal Corporation (Buildings) Bye-laws, 1972 by declaring the same as meaningless, unreasonable, arbitrary and unconstitutional and to restrain the respondents from enforcing the said bye-laws against the petitioners proposed construction of 6th, 7th and 8th floors over and above the existing structure.

(2.) The relevant averments as per the affidavit of the petitioners in brief are: The three petitioners, who are brothers, own an extent of 8400 sq. Yards of land with a building bearing Municipal No. 143/C at Secunderabad. On 4-10-1978, they submitted a plan to the Hyderabad Municipal Corporation-2nd respondent herein for construction of a building consisting of 8 flats in each floor of the six floors apart from the ground floor, the height of the building not exceeding 92 feet. In Sept.., 1979, the plan was sanctioned and thereafter they raised the building with ground and five upper floors by 15th May 1980. On 20-5-1983, they submitted revised plans for the construction of three additional floors above the 5th floor. The additional three floors were nothing but repetition of the floors below. Even after passage of five months, no reply whatsoever was received. On an enquiry it was reliably learnt that the authorities concerned misconstrued Bye-law 23 of the Building Bye-law of the 2nd respondent i.e., Municipal Corporation of Hyderabad, and therefore, started creating difficulty in according permission. As a result of this misinterpretation the respondents are insisting on open air space on all sides of the building. It is not open to the authorities to insist upon leaving open air space on all sides. In fact Bye-laws 26 and 27 deal with that aspect of the matter. As a matter of fact the 2nd respondent realising the unreasonableness of Bye-law 23, is not insisting upon strict compliance of the same and in several cases the plans have been sanctioned without insisting upon the observance of the said bye-law, as per their interpretation.

(3.) Likewise, Bye-law 24 is also unreasonable as it permits the taking into account of the open air space in the street, but on the other side it insists upon the open air space in the owners premises completely. The unnecessary insistence upon the leaving of open air space will add to the cost of the building, which has already gone up. Both the Bye-laws 23 and 24 it is averred, are instances of lack of care and caution in making them since they cause enormous hardship, apart from being unreasonable and unconstitutional. The petitioners who are engaged in the business of construction of flats and selling them are faced with unreasonable restrictions on their operating the business, which is guaranteed under Article 19(1) (g) of the Constitution. For all these reasons, Bye-laws 23 and 24 which are meaningless, unreasonable and unconstitutional, have to be struck down.