JAWAHAR REDDY K Vs. STATE OF ANDHRA PRADESH

JUDGEMENT

(1.) The 1st two writ petitions are filed by the owners of the property bearing Municipal No. 3-4-142/5/A, Barkathpura, Hyderabad aggrieved by the orders passed by the Commissioner and Special Officer, Municipal Corporation of Hyderabad dated 23-10-1998 under which the earlier proceedings regularising the construction made by the petitioners were cancelled. The other two writ petitions are filed by two neighbours to the above-referred property complaining violation of the Building Bye-laws and they sought for quashing of the Government Orders in G.O.Ms.No. 289 dt 25-5-1998 and G.O.Ms.No. 419 dt. 30-7-1998 and also the revised permit Nos. 172/ 17/ 80 and 172/17/79 dt. 26-6-1998 as illegal, arbitrary and without jurisdiction and also further sought for a direction not to regularise the illegal constructions that were effected in the above referred property. Further a direction was also sought for to the authorities of the Municipal Corporation to take appropriate action in respect of the illegal constructions made in the above referred" property by the owners and demolish the unauthorised and illegal constructions effected in the said property. As the dispute in all the four writ petitions relates to the same property, they are heard together and disposed of by this common order.

(2.) The brief facts of the case are that the petitioners in the first two writ petitions, who are husband and wife, purchased 300 sq. metres of house-site in the premises bearing Municipal No. 3-4-142/5/2, Barkathpura, Hyderabad from one Smt. G. Kamala Rao through a registered sale deed dt. 26-6-1997. Thereafter, the said purchasers submitted a joint application for the construction of the building to the Municipal Corporation of Hyderabad (for short 'M.C.H') vide M.C.H.No.144/5/97. The M.C.H. sanctioned the plan submitted by them and issued permit No. 63/82. 29-9-1997. As per the sanctioned plan, constructions have to be effected in the ground floor plus two floors. It is also stated that in the ground floor the owners have to leave northern side for parking and construction has to be made on southern side. The M.C.H. while sanctioning the plan did not allow balcony on the 2nd floor and one bedroom on the eastern side and granted sanction only for the rest of the plan. According to the owners of the property (petitioners in the 1st two writ petitions), they found that the parking space shown in the sanctioned plan was not sufficient for the occupants of the building and therefore they left the entire ground floor for parking without any construction except the staircase and decided to construct one more floor on the top. Accordingly, they have constructed the additional floor instead of effecting any construction on the ground floor. Thereafter, the owners approached the Government for regularisation under the relevant Rules of the Corporation as well as to condone the deviations. While the said application was pending before the Government, the owners came to know that the M.C.H was regularising the unauthorised constructions and deviations from the sanctioned plans, therefore the owners approached the M.C.H As the owners of the said premises came to know that the condition for regularisation was that the site should be less than 200 sq. mtrs., then according to them there was a past oral partition and the same was reduced into writing in August, 1997. It is stated that the said oral partition was made essentially for the purpose of division of expenses for the construction between the two owners who are husband and wife, as the construction was financed by each of them, According to them, they have shown the said memo of partition and submitted the application for regularisation. The M.C.H. sanctioned the revised plan after due inspection and verification and issued Permit Nos.172/17/ 79 dt. 26-6-1998 in favour of the wife and Permit No. 172/17/80 dt. 26-6-1998 in favour of the husband. It is also stated that the M.C.H. had charged penal fee of Rs. 22,000/- from each. Thus a total sum of Rs.44,000/- was paid. It is stated that the Government issued various orders for regularisation of deviations and unauthorised constructions from time to time. As per G.O.Ms.No. 289 dt. 25-5-1998, the period for regularisation was extended up to 30th July, 1998 and this period was further extended by G.O.Ms.No.419 dated 30-7-1998 superseding all the previous Government orders extending the date of regularisation of unauthorised constructions up to 31-7-1998. All these Government Orders were made applicable to the constructions made in plots up to 200. sq. mtrs. It is also stated that the M.C.H. also assessed the buildings to property tax and tax was also collected with reference to separate portions of the buildings which were numbered as 3-4-142/5/A-1, A-2 and A-3 for three floors respectively. While so, the Chief City Planner issued notice dt. 27-8-1998 to both the owners of the premises in question alleging that they had obtained the regularisation order dated 26-6-1998 by material suppression of facts and by playing fraud and called upon the owners of the property to submit their representation or explanation within 10 days of the receipt of the notice. Thereafter, the petitioners submitted their explanation disputing the allegations made in the notice about the misrepresentation of facts or playing any fraud while obtaining regularisation orders in respect of the constructions effected by them. However, the Commissioner passed orders dated 23-10-1998 in respect of both the orders in question, cancelling the permits granted to them regularising the deviations or unauthorised constructions by order dated 26-6-1998. Questioning the said action of the Commissioner, the 1st two writ petitions are filed by the owners.

(3.) The other two writ petitions are filed by the two neighbours of the above referred property complaining the deviations as well as the unauthorised constructions effected by them thereby affecting their rights apart from alleging that the said deviations and unauthorised construction are in contravention of the provisions of M.C.H. Act and the Building Bye-laws. Their grievance is that though representations were made to the concerned officials of the Corporation, they did not take any action and therefore they were constrained to approach this Court seeking Writ of Mandamus. In these writ petitions they are also assailing the jurisdiction and powers of the Government in issuing various Government Orders including the one G.O.Ms.No.289 dt. 25-5-1998 as well as G.O.Ms.No.419 dt. 30-7-1998 which empowers the Commissioner of the Corporation to regularise the constructions that are effected in deviation of the sanctioned plan as well as unauthorised constructions effected by the owners of plots below an extent of 200 Sq. mtrs. According to these petitioners, the Government has no jurisdiction either to relax the existing laws or to regularise the illegal and unauthorised constructions. Hence, they sought for quashing of the Government Orders authorising the Commissioner of M.C.H. to regularise the deviated and unauthorised constructions. The Petitioners in these writ petitions also sought for a direction to take appropriate legal action to demolish or to remove the unauthorised and deviated constructions effected by the owners in the above referred premises.