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2021 DIGILAW 285 (TS)

Shabeer Khan v. Greater Hyderabad Municipal Corporation

2021-09-15

A.ABHISHEK REDDY

body2021
ORDER : 1. Since the issue involved in both these matters is intrinsically connected, they are taken up together and disposed of by this common order. 2. Sri Shabeer Khan, petitioner in W.P. No. 20102 of 2020 has filed the writ petition seeking a direction to the Greater Hyderabad Municipal Corporation (‘GHMC’) to take steps to prevent the running of cement and steel godown and sales in the name of ‘Sri Vijaya Lakshmi Steels’ by the respondent No. 3 in the premises owned by respondent No. 4. 3. Whereas, Sri Vijaya Lakshmi Steels filed W.P. No. 17275 of 2021 (respondent No. 3 in W.P. No. 20102 of 2020) challenging the action of the Deputy Commissioner, Circle No. 19, GHMC, in issuing notice, dated 27.01.2021 under Section 461(A) of the GHMC Act, 1955 and the subsequent seizure of the shop. 4. For the sake of convenience, the facts in W.P.No. 20102 of 2020 are narrated. 5. The petitioner is the owner of premises bearing H.No.8-3-228/7, Rahamat Nagar, Yousufguda, Hyderabad. The adjacent owner i.e., the respondent No.4 had let out the premises to respondent No.3 for running business of godown for cement and steel stockage and other construction supply. Since the respondent No. 3 is using the residential premises for running commercial activities and as the cement dust is polluting the air and spreading to the neighbouring areas, the loading and unloading of steel is causing noise pollution, the petitioner had filed various representations before the GHMC complaining about the commercial activity being carried on by the respondent No.3. As a result, the premises, in which the respondent No.3 is carrying out the business, was sealed by the GHMC. Aggrieved thereby, the respondent No.3 filed W.P.No.47887 of 2018 alleging that the officials of GHMC have seized the premises without taking into consideration the fact that there is a valid provisional trade licence issued in favour of respondent No.3 for the year 2018-19 and being renewed from time to time. This Court by order dated 02.01.2019 set aside the order of seizure holding that “whether the petitioner’s business is causing pollution and nuisance is required to be objectively considered by the respondent authorities keeping in view the businesses that are being permitted by them in the surrounding areas and in the present case, admittedly, no notice was issued to the petitioner before sealing the premises….”. 6. 6. Subsequent, to the disposal of the said writ petition, the petitioner again filed complaints to the GHMC as well as Pollution Control Board against the business activity being carried out by the respondent No.3. Alleging inaction on the part of the GHMC in taking action on the representations/complaints of the petitioner, W.P. No. 20102 of 2020 is filed. 7. On 16.11.2020, this Court while ordering notice before admission in W.P. No.20102 of 2020 directed the GHMC to consider the representation of the petitioner, dated 02.03.2020 and pass necessary orders duly putting on notice all the interested parties. As a result, the officials of GHMC have issued notice to the respondent No.3 on 27.01.2021 under Section 461(A) of GHMC Act, 1955. As no report was filed before this court, again, by order dated 24.03.2021, this Court directed the GHMC officials to comply with the orders dated 16.11.2020 and file a compliance report by 07.06.2021. In compliance with the orders of this Court, the officials of GHMC, after considering the representation submitted by the respondent No.3, seized the premises on 12.07.2021. Challenging the said seizure and the notice, dated 27.01.2021, the respondent No.3 filed W.P. No. 17275 of 2021. 8. Heard the learned counsel for the respective parties and perused the material available on record. 9. For better adjudication of the matter, W.P.No.17275 of 2021 is taken up for adjudication before taking up W.P. No.20102 of 2020. 10. Coming to W.P. No.17275 of 2021, the learned counsel for the petitioner-Sri Vijaya Lakshmi Steels, submits that the petitioner has been carrying on the business in the subject premises since 2015 duly obtaining the provisional trade licence which has been renewed by the official respondents from time to time and lastly on 18.03.2021 for the year 2021-2022. It is only due to the disputes/rivalry between the owner of the petitioner and the respondent No. 5 (petitioner in W.P. No. 20102 of 2020), frequent complaints have been filed against the petitioner, who is only a lease holder, in order to wreck vengeance against the owner. Even the respondent No.5 withdrew the earlier writ petition being W.P. No. 34801 of 2018 filed with similar relief, after filing counter by the petitioner. Even the respondent No.5 withdrew the earlier writ petition being W.P. No. 34801 of 2018 filed with similar relief, after filing counter by the petitioner. As per the orders of this Court in W.P. No.20102 of 2020, dated 16.11.2020, the official respondents have issued notice, dated 20.11.2020, pursuant to which the petitioner and the owner of the premises have appeared before the official respondents and filed their explanations, but no orders are passed thereon. However, the official respondents again issued notice under Section 461(A) of the GHMC Act on 27.01.2021 and even though the petitioner and the owner of the premises have filed their explanation on 17.02.2021, without considering the same, the official respondents have seized the business premises by the impugned order, dated 12.07.2021. 11. On the other hand, the learned counsel for the unofficial respondent No.5 i.e. petitioner in W.P. No.20102 of 2020, adverting to the counter affidavit, has argued that the petitioner Sri Vijaya Lakshmi Steels is not entitled to run the cement and steel stockage and supply godown in a notified residential zone, in violation of the mandatory provisions of the statutory Master Plan and the Zoning Regulations. The learned counsel contends that the premises in question is a residential zone in terms of the Master Plan/Zoning Regulations, notified vide G.O.Ms. No.363, MA & UD Department, dated 21.08.2010. Further, the learned counsel contends that in the exhaustive list of “uses permitted” in residential zone, in the notified Master Plan/Zoning Regulations, the pollution-causing godown does not find place, and therefore, no activity, which is not specified in the “uses permitted”, can be conducted in residential zone. Hence, no trade licence can be granted for steel and cement godown in a residential zone and even if any such a trade licence is granted, the same would be invalid and non est in the eye of law and would not confer any right on Sri Vijaya Lakshmi Steels to continue doing business contrary to the Zoning Regulations. Therefore, the godown being run by the petitioner is in contravention of the statutory Master Plan and Zoning Regulations and hence, it attracts action under Section 461(A) of the GHMC Act, 1955, and has defended the action taken by the G.H.M.C. 12. Therefore, the godown being run by the petitioner is in contravention of the statutory Master Plan and Zoning Regulations and hence, it attracts action under Section 461(A) of the GHMC Act, 1955, and has defended the action taken by the G.H.M.C. 12. After hearing the rival submissions of both the counsel and going through the pleadings and documents filed by both the parties, and a perusal of the Trade Licence filed by the petitioner in W.P.No.17275 of 2021, it is seen that the said Trade Licence was issued with a condition that if the building structure is unauthorized or used for running the business in other than zones prescribed or effected in the road widening or not fulfilling the provisions or Rules of the GHMC Act, the license is deemed to be cancelled. Admittedly, the present premises is a residential premises and the said area is earmarked as a residential zone as per G.O.Ms.No.363 dated 21.08.2010. Some of the activities, which are permitted as per G.O.Ms.No.363, dated 21.08.2010, are Dharmashalas/Guest Houses, Doctor clinics/ Dispensaries and office of the Advocates/ Architects and other professionals not exceeding the area of 40 sq. meters., in independent residential premises, Hotels & Boarding houses, Petrol/Fuel pumps on plots above 500 sq. meters and abutting road of minimum 18 meters width without service station and 1000 sq. meters with service station etc., and all other uses which are not permitted are prohibited. The present Trade Licence issued to Sri Vijaya Lakshmi Steels though was given for the sale of steel and cement will not come under the permitted activities in the residential use zone. Therefore, the very issuance of the Trade License by the authorities without verification as to whether the same is permissible in a residential zone is contrary to the said residential use zone as per G.O.Ms.No.363, dated 21.08.2010. 13. A perusal of the photos shows that the petitioner has dumped large number of steel rods and cement in the said premises and it is a known fact that whenever the steel is loaded or unloaded into/from any transport vehicle, there will be a huge noise pollution. Likewise, loading and unloading of the cement will cause air pollution. 14. 13. A perusal of the photos shows that the petitioner has dumped large number of steel rods and cement in the said premises and it is a known fact that whenever the steel is loaded or unloaded into/from any transport vehicle, there will be a huge noise pollution. Likewise, loading and unloading of the cement will cause air pollution. 14. Having regard to the admitted fact that the petitioner is running a commercial unit, which is not permitted to carry from a residential Zone as per the terms of above mentioned G.O., this Court does not find any illegality or infirmity in the action of the respondent authorities in sealing the said building. However, having regard to the fact that the petitioner has kept some stock of steel and cement in the said premises, the official respondents shall permit the petitioner to take out his stock and seal the premises again. If the petitioner wants to run any business, which is permissible in the residential zone as per G.O.Ms.No.363, dated 21.08.2020, it is free to make an application for the same. It is made clear that this order does not entitle the GHMC or the land owner to dispossess the petitioner without following due process of law. If the petitioner wants to take the material placed in the subject premises, the authorities concerned shall remove the seal of the premises duly putting the petitioner on notice and permit him to take away the stock within a period of two days from the date of such notice and thereafter, the premises shall be sealed again and the petitioner shall not be allowed to run the business which is prohibited from the said premises. The authorities concerned shall take necessary steps for canceling the present Trade Licence duly putting the petitioner on notice. However, this order does not preclude the petitioner from applying for any other business, which are permitted in the residential use zone as per G.O.Ms.No.363, dated 21.08.2020. If any such application is made, the authorities concerned shall consider the same, in accordance with law, on its own merits. 15. Accordingly, W.P. No.17275 of 2021 is disposed of. 16. Having regard fact that the premises in question has already been seized by the authorities and necessary action has been taken, the prayer in Writ Petition No.20102 of 2020 has become infructuous. 17. 15. Accordingly, W.P. No.17275 of 2021 is disposed of. 16. Having regard fact that the premises in question has already been seized by the authorities and necessary action has been taken, the prayer in Writ Petition No.20102 of 2020 has become infructuous. 17. Accordingly, W.P. No.20102 of 2020 is dismissed as the prayer in the writ petition has become infructuous. 18. Miscellaneous petitions pending, if any, shall stand closed. There shall be no order as to costs.