P NARAYANA Vs. STATE OF A P

JUDGEMENT

(1.) The petitioners herein purchased house bearing Plot No.7 (Premises Nos.2-3-520/17 and 2-3-520/18) admeasuring 500 square yards in Survey Nos.49, 50 and 51 of Bholakpur Village from one Smt. Manjula Devi Surana under registered sale deed dated 3.5.2003. This property originally was allotted by a Co-operative Society - DV Colony Co-operative Society (the Society, for short) to one Durga Singh, who sold to R. Kumar and R. Mallesh, who in turn sold the property to the vendors of the petitioners. The petitioners allege that the said property was in dilapidated condition and therefore they intended to construct residential building and that they made an application to second respondent after obtaining No Objection Certificate from the Office of the District Collector, Hyderabad. They also allege that though the application was made on 19.11.2003, the second respondent neither approved nor rejected the plan within thirty days and therefore the petitioners commenced construction, having regard to Section 437 of the Hyderabad Municipal Corporation Act, 1955 (the H.M.C. Act, for brevity), which lays down that if the permission is not rejected within thirty days, the permission is deemed to have been granted. Be that as it is, the petitioners allege that when they commenced construction, the second respondent sent a communication bearing No.01054/CSC/TP7/ 03-12 dated 2.1.2004 refusing building permission for construction of residential building comprising ground plus three upper floors. The petitioners assailed the same on the ground that it is mala fide, illegal and arbitrary.

(2.) The Chief City Planner filed counter-affidavit on behalf of second respondent stating that the property claimed by the petitioners is covered by approved layout of Society covered by Survey Nos.49, 50 and 51 at Nallagutta, Secunderabad. The layout permit No.140/69 dated 27.8.1987 was released as per Municipal Corporation of Hyderabad (Layout) Rules, 1965 (the Layout Rules, for short), on execution of guarantee by the Society for providing amenities as per specifications prescribed in the Rules. The Society has not provided the amenities in spite of several reminders. A decision is taken by Municipal Corporation of Hyderabad (M.C.H.) not to grant any permission in the said layout, as till today the Society is not having full-fledged amenities. It is also stated that the M.C.H. granted permissions to many plots based on undertaking given by the Society from time to time to provide all amenities. The petitioners submitted application on 19.11.2003 along with No Objection Certificate issued by the District Collector. The Corporation issued a letter to the petitioners directing not to proceed with any type of construction till the permission is obtained and ultimately the permission was refused on 2.1.2004. The allegation made by the petitioners that the M.C.H. deemed to have sanctioned permission under Section 437 of the Act is denied. It is further stated that unless the layout is developed as per standards and specifications, no permission can be granted. The Society has not complied with the conditions for providing amenities and did not extend the bank guarantee in spite of several requests made by M.C.H. Though initially the M.C.H. granted permissions for construction to many plots based on the undertaking given by the Society from time to time, since the Society failed to provide amenities, the respondent M.C.H. is not granting any permission for construction of houses. It is further stated that the Society has changed layout pattern without obtaining a revised layout. The plot numbers allegedly owned by the petitioners are not tallying as per the approved layout pattern. The matter came up before this Court at interlocutory stage, but the learned Counsel for the petitioners and the learned Standing Counsel for M.C.H. requested the Court to hear the matter finally. The matter was heard finally and is being disposed of at interlocutory stage.

(3.) The learned Counsel for petitioners Sri Kishore Rai submits that the action of the M.C.H. in refusing to grant permission on the ground that the Society failed to furnish bank guarantee is illegal and arbitrary. He would urge that for the lapses on the part of the Society, petitioners who purchased the plots for valid consideration cannot be denied for building permission. He would urge that when once the layout is approved by the M.C.H, there is no such power to reject the application of the petitioners for building permission. The layout was approved in the year 1987 and after lapse of sixteen years, the M.C.H. cannot reject the building permission on the ground that for want of extension of bank guarantee, the layout has been lapsed. He would also urge that the demand made by M.C.H. for the amounts covered by bank guarantee is not authorized in law. The petitioner also contends that when admittedly the M.C.H. granted permission to other plot owners, denial of the same to the petitioners would amount to discrimination violating Article 14 of the Constitution of India.