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2021 DIGILAW 339 (TS)

Anwar Jahan v. State of Telangana

2021-11-11

K.LAKSHMAN

body2021
ORDER : This Writ Petition is filed to declare the action of the official respondents in not considering the representation. dated 23.02.2021 submitted by the petitioner to stop the illegal construction being carried out by the 5th respondent in the premises bearing Nos.22-2-636 to 650 and 664, 666 and 667 admeasuring total area of 2,602.01sq.yards (for short, ‘the subject property’) as illegal and for consequential direction to the respondent Nos.2 to 4 to take appropriate action against the said illegal construction. 2. Heard Sri P.Venu Gopal, learned senior counsel, representing Sri Ch.Siddhartha Sarma, learned counsel appearing for the petitioner, learned Government Pleader for Municipal Administration and Urban Development appearing for the 1st respondent, Sri Pasham Krishna Reddy, learned standing counsel appearing for the respondent Nos.2 to 4 and Sri Vedula Venkataramana, learned senior counsel, representing Sri D.B.chaitanya, learned counsel for the respondent No.5 and perused the record. 3. FACTS OF THE CASE i) The Petitioner claims to be the permanent resident of H.No.22-3-885, First Floor, situated at Darulshifa, Hyderabad. ii) Diagonally opposite to her house and immediately across the street outside the entrance to her house, the subject property is situated. iii) The size of the plot as it exists now, after demolition of various structures previously existed, is around 2,602.01sq.yards. iv) The unofficial respondents are carrying on construction unauthorizedly which is of religious relevance, without leaving setbacks and entire material is stagnated on the road leading to a lot of congestion and causing health hazards. v) On noticing such a construction, which is not in tune with any standards of construction and also with the provisions of the Greater Hyderabad Municipal Corporation Act, 1955 (for short, ‘the GHMC Act’), the petitioner sought the authorities concerned, certain documents under the Right to Information Act. vi) Therefore, the petitioner herein has submitted a representation dated 23.02.2021 along with photographs to respondent Nos.2 to 4 complaining about the unauthorized construction being carried on by the 5th respondent and requested them to take action in accordance with law. vii) Despite receiving and acknowledging the said representation, the respondent Nos.2 to 4 did not act upon it. viii) Therefore, the petitioner filed the present writ petition is filed. 4. CONTENTIONS OF THE RESPONDENT NOS.2 TO 4 i) The petitioner is nothing to do with the subject property and she is no way affected with the construction being carried on by the 5th respondent. viii) Therefore, the petitioner filed the present writ petition is filed. 4. CONTENTIONS OF THE RESPONDENT NOS.2 TO 4 i) The petitioner is nothing to do with the subject property and she is no way affected with the construction being carried on by the 5th respondent. ii) The 5th respondent is owner of the property and obtained building permission for the construction. iii) The petitioner is residing at about 100 to 200 meters away from the subject property. iv) On the complaint of the petitioner that the 5th respondent is making the illegal construction, the 4th respondent has verified the permissions. v) The 4th respondent has also received a complaint from the 5th respondent stating that as the petitioner and the 5th respondent belong to two different sects in Shiya group, the, the petitioner has been making several complaints against the Committee and also making false allegations against its Members to defame in the society, since long time. vi) The petitioner’s brother made illegal construction at H.No.22-3-882 to 885 having ground + three floors by encroaching into the public road from the balconies and steps on the road near to the mosque but the petitioner did not choose to file a case against his brother. vii) The petitioner constructed ground +two floors building without obtaining permission, by encroaching into the public road at H.No.22-2-202/1, but the petitioner intentionally not made them as party nor made complaint to the GHMC. viii) The petitioner is harassing the officials and also unofficial respondents for extraneous reasons. ix) The 4th respondent has also verified the building of the petitioner and obtained photographs as she herself made the illegal construction without setbacks. x) With the said contentions, the respondent Nos.2 to 4 sought to dismiss the present writ petition. 5. CONTENTIONS OF THE 5TH RESPONDENT i) The petitioner has no locus to file the writ petition. ii) GHMC has granted building permit in favour of four persons which is specifically stated in the counter affidavit. iii) Therefore, the allegation of the petitioner that illegal construction is going on at the subject property by the 5th respondent is false. iv) A perusal of the counter filed by the 4th respondent would reveal that he has already acted upon the representation dated 23.02.2021 submitted by the petitioner and therefore, this Writ Petition has become infructuous. iii) Therefore, the allegation of the petitioner that illegal construction is going on at the subject property by the 5th respondent is false. iv) A perusal of the counter filed by the 4th respondent would reveal that he has already acted upon the representation dated 23.02.2021 submitted by the petitioner and therefore, this Writ Petition has become infructuous. v) As per the contents of the complaint made by the petitioner, she has to approach civil Court regarding identity, demarcation and location of several items of properties. vi) With the said contentions, the 5th respondent sought to dismiss the present writ petition. 6. The petitioner herein has filed I.A.No.4 of 2021 to implead four persons in whose favour the above said building permits were issued. She also filed I.A.No.5 of 2021 to amend the prayer. CONSIDERATION OF THE COURT 7. The above stated facts would reveal that the grievance of the petitioner in the writ petition is non-consideration of her representation dated 23.02.2021 wherein she alleged about illegal construction activity being carried on by the 5th respondent without leaving set backs and stagnating material at the government road leading to congestion of road, heavy pollution resulting in health hazard to her. The construction is going on combining the private property and the waqf property known as Ibadath Khana Darulshifa. It is being carried on by an unauthorized self-styled Management Committee of the Ibadath Khana Darulshifa. The petitioner came to know that the said illegal construction activity is going on under the management of the President Mr. Mir Husnain Ali Khan, without obtaining necessary permissions and clearances from the GHMC and other statutory authorities. 8. In the counter filed by the respondent Nos.2 to 4, it is specifically mentioned that the GHMC has issued building permission vide permit Nos.Nos.3/C6/05508/2019, dated 03.04.2019, 3/C6/17898/ 2019, dated 10.12.2019, 3/C6/04981/2019, dated 26.03.2019, 3/C6/ 04980/2019, dated 26.03.2019. 9. The 5th respondent has also specifically mentioned the details of the other building permits obtained by the four persons. The 3rd respondent has also filed copies of the said building permits. A perusal of the said building permits would reveal that they were obtained to make construction in the premises bearing Nos.22-2-664, 636 and 637, 666, 667 and 645 to 650 situated at Darulshifa, Hyderabad. The said permits were obtained by the four persons for construction of residential buildings. 10. A perusal of the said building permits would reveal that they were obtained to make construction in the premises bearing Nos.22-2-664, 636 and 637, 666, 667 and 645 to 650 situated at Darulshifa, Hyderabad. The said permits were obtained by the four persons for construction of residential buildings. 10. In view of the same, the allegation made by the petitioner in the writ petition as well as in the representation dated 23.02.2021 that the 5th respondent is carrying on construction unauthorizedly, is false. A perusal of the counters filed by the respondent Nos.2 to 4 and respondent No.5 would reveal that there are four building permits for construction of residential houses and they were issued in the name of the four individuals and not in the name of the 5th respondent. Thus, the 5th respondent is not making any construction more particularly unauthorized construction as alleged by the petitioner herein. If there are any deviations made by the four said persons in whose favour the said building permits were issued, it is for the petitioner to make appropriate complaint/representation with the GHMC authorities with a request to take action. Whereas, the petitioner herein without verifying the records properly, submitted said representation dated 23.02.2021 to GHMC officials and filed the present writ petition alleging non-consideration of the said representation. 11. In the counter filed by the respondent Nos.2 to 4 and 5, there is specific allegation against the petitioner herein. The petitioner had constructed ground+2 floors bearing H.No.22-2-202/1 without obtaining permission by encroaching into public road. The petitioner’s brother made illegal construction at H.No.22-2-882 to 885 consisting of ground + three floors by encroaching into public road and balconies and steps on the road near to the mosque, but she has not submitted any representation with GHMC authorities against the illegal construction made by her brother. Though there are specific allegations against the petitioner and her brother in the counter filed by the respondent Nos.2 to 4, she has not filed any reply denying the said facts. Thus, the petitioner herein has not approached this Court with clean hands. 12. Now the petitioner filed a petition vide I.A.No.4 of 2021 seeking impleadment of the above said four persons in whose favour building permits were issued. She also filed a petition vide I.A.No.5 of 2021 seeking to amend the prayer in the writ petition. Thus, the petitioner herein has not approached this Court with clean hands. 12. Now the petitioner filed a petition vide I.A.No.4 of 2021 seeking impleadment of the above said four persons in whose favour building permits were issued. She also filed a petition vide I.A.No.5 of 2021 seeking to amend the prayer in the writ petition. In the said petitions, the petitioner herein has raised a new ground stating that on the ground situation as of now, there are four separate permits for construction of four independent units. However, a massive construction has been made by demolishing the existing Ibadath Khana without any permission. Thus, the four independent units together with Ibadath Khana were constructed attaching the whole thing as a single unit, which is contrary to the four building permits granted separately. She has also further contended that after filing writ petition, she has tried to obtain information under the RTI Act. Thus, the petitioner is now seeking amendment to declare the construction being made by the proposed respondent Nos.5 to 9 in the subject premises, as illegal and consequential direction to the respondent Nos.1 to 4 to demolish the illegal construction. Thus, the petitioner herein has submitted the above said representation dated 23.02.2021 and filed the present writ petition without ascertaining the facts properly and without obtaining information/documents from the authorities concerned, before submitting the said representation and filing the writ petition. 13. As discussed supra, at the cost of repetition, initially grievance of the petitioner was that illegal constructions are being carried out by the 5th respondent without obtaining permission and now her grievance is that the proposed respondents are making illegal constructions. But there is no pleading in the representation dated 23.02.2021 and also in the present writ petition with regard to demolition of existing Ibadadh Khana without any permission and the four independent units together with Ibadath Khana were constructed attaching the whole thing as a single unit which is contrary to the four building permits granted separately. 14. Thus, the petitioner herein takes new pleas in I.A.Nos.4 and 5 of 2021 filed for impleadment and amendment as stated above, which will change the very nature of the relief sought in the main writ petition. Any amendment which changes the very nature of the relief sought in the original proceedings is not permissible. 15. 14. Thus, the petitioner herein takes new pleas in I.A.Nos.4 and 5 of 2021 filed for impleadment and amendment as stated above, which will change the very nature of the relief sought in the main writ petition. Any amendment which changes the very nature of the relief sought in the original proceedings is not permissible. 15. As discussed supra, the petitioner herein has not approached this Court with clean hands. There is clear suppression of facts. The petitioner herein without ascertaining the facts and without obtaining the relevant information/documents before filing of the representation, dated 22.03.2021, filed the present writ petition with false and baseless allegations. Therefore, the petitioner is not entitled for the amendment as sought by her and so also the impleadment. Therefore, I.A.Nos.4 and 5 of 2021 are liable to be dismissed. 16. This Court, vide order dated 28.07.2021, considering the fact that though counter affidavit filed by the respondent-Corporation, states that the respondent No.5 has obtained four separate building permissions, but as can be seen from the photographs filed by the petitioner along with the writ petition, the 5th respondent is constructing a single unit, directed the official respondents to take necessary steps to stop the illegal construction made by the unofficial respondent No.5 and also to see that no further construction takes place in the subject premises. As discussed supra, four building permits were obtained by the four individual units but not by the 5th respondent. Therefore the said interim order granted by this Court is not on actual facts and the same is liable to be vacated. 17. In the result, I.A.Nos.4 and 5 of 2021 are dismissed. Consequently, the Writ Petition is disposed of with the following directions:- i) The respondent Nos.3 and 4 are directed to take appropriate action as per law with regard to the unauthorized construction made by the petitioner and her brother. ii) The respondent Nos.3 and 4 are further directed to take action as per law, if the above said four persons make any construction in deviation of building permits. iii) The said exercise shall be completed within eight (8) weeks from the date of receipt of a copy of this order. iv) The interim order granted on 28.07.2021 shall stand vacated. v) There is no order as to costs. vi) As a sequel, the miscellaneous petitions, if any, pending in the writ petition shall stand closed.