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2023 DIGILAW 496 (TS)

G. v. Siva Kumar Reddy VS State of Telangana

2023-07-07

N.V.SHRAVAN KUMAR

body2023
JUDGMENT 1. This writ petition has been filed seeking "to declare the action of the 4th Respondent in issuing notice bearing No.112/TPS/ACP/KPZ/ GHMC/2023 dt 9/6/2023 under Sec. 456 and 459 of the GHMC Act, 1955 solely to the petitioner herein holding him responsible for any untoward incidents despite the Petitioner himself having submitted a representation dtd. 9/6/2023 requesting for the demolition of the dilapidated complex in premises bearing No.10/3/112/1, 112/2 and 112/3 consisting of three floors i.e., ground first and second floors with each floor having built-up area of 5000 sq ft and totally admeasuring 15000 sq fts and abutting 4000 sq ft open area situated at Fatehnagar Village, Balanagar Mandal Ranga Reddy District as illegal and consequentially direct the Respondent Nos.3 and 4 to remove/demolish the said dilapidated complex" 2. Learned counsel for the petitioner submits that petitioner is the absolute owner and possessor of house bearing No.10/3/112/1, 112/2 and 112/3 and further submits that respondent No.5 approached the petitioner with an offer to take the subject property on lease and both the parties i.e., petitioner and respondent No.5 entered into registered lease deed, bearing Doc No.901/2015, dtd. 5/2/2015. However, without the knowledge of the petitioner, the respondent No.5 had sublet the subject property to respondent No.6 and the respondent No.6 thereafter running a school in the subject property under the name and style of "Krishnaveni Talent School" 3. Learned counsel for the petitioner draws attention of this Court to the Clause-21 of the Registered lease deed bearing Doc No.901/2015, dtd. 5/2/2015, which reads as: 21. SUB LEASE ASSIGNMENTS: The Lessee is at liberty to sublet or license, assign or create such other rights or title or interest to, over or in respect of the Schedule Premises to any of its subsidiary or any holding society or trust or company or any associated company with a substantial holding by the Lessee or by any society or association under the management and/or control of the Lessee and the same shall not ordinarily be treated as sub-letting or parting with the possession of the said letting out premises and the Lessee shall not require written consent of the Lessors in this regard. Further, as a general undertaking, except as stated herein, the Lessee shall not sub-let or assign or part with the possession of the proposed let out premises during the subsistence of this lease deed to any third party without prior written consent. 4. Learned counsel for the petitioner submits that the respondent No.5 has violated the clause No.21 and had sub-let the subject property to respondent No.6 without any permission from the petitioner and further submits that since there was dispute in terms of Clause No.21 of the lease agreement, the petitioner has invoked Arbitration proceedings, and that the petitioner has filed application under Sec. 11 of the Arbitration and Conciliation Act, 1996, vide Arb.Appl No.179 of 2022 before this Court seeking appointment of sole arbitrator and the same is pending for adjudication. 5. Learned counsel for the petitioner submits that when the petitioner physically inspected the subject property, the petitioner observed that there are leakages in the subject building property and the building is in dilapidated condition. Subsequently, petitioner requested respondent Nos.5 and 6 to vacate the building but the respondent Nos.5 and 6 are not heeding the request of the petitioner and continuing to run the school in the dilapidated building in the subject property thereby posing a significant risk to the lives of the children studying in the subject property. Subsequently, petitioner made a complaint to respondent No.4, and in turn the respondent No.4 issued notice, to petitioner bearing No.112/TPS/ACP/KPZ/ GHMC/2023, dtd. 9/6/2023 under Sec. 456 and 459 of GHMC Act, which reads as: "In the light of your representation -take notice under Sec. 456 &459 of HMC Act, 1955 the building bearing H.No.10/3/112M, 112/2&112/3 situated at Fatehnagar, more fully described in the Schedule given below, is in serious condition or likely to fall. You are hereby required as the Owner/Occupier (with valid proof of documentation) to show cause by submitting your objections if any, within (7) days setting out all your objections as to why the same should not be pulled down / Remove / Repair to prevent all causes of danger there from by this office at your expenses. You are entitled to make representation and adduce evidence if any on or before the expiry of above given time. Further, it is to inform that you are held responsible for any untoward incidents i.e., damage of neighbours property, passerby and specially school children. 6. You are entitled to make representation and adduce evidence if any on or before the expiry of above given time. Further, it is to inform that you are held responsible for any untoward incidents i.e., damage of neighbours property, passerby and specially school children. 6. Learned counsel for the petitioner further submits that respondent No.4 issued said notice solely to petitioner, as the petitioner is neither in occupation nor control over the subject property and submits that respondent authorities without application of mind issued notice to the petitioner, wherein the respondent ought to have issued notice to the respondent No.5 and 6 and learned counsel for the petitioner would further pray this Court to direct the respondent authorities to take necessary action and demolish the dilapidated building on the subject property. 7. Sri M.Dhananjay Reddy, learned standing counsel for GHMC submits that upon receipt of petitioner's complaint, the respondent authorities issued show cause notice, dtd. 6/6/2023 to owner as well as occupier of the subject property i.e., Respondent No.6 (Krishnaveni Talent School), which reads as: "Take notice under Sec. 459 of HMC Act, 1955, the following portion/Building 10/3/112, situated at Fathenagar more fullly described in the schedule given below, is in serious condition or likely to fall. You are hereby required as the Owner/Occupier to show cause by submitting your objections if any, within (7) days setting out all your objections as to why the same should not be pulled down/Remove/Repair to prevent all causes of danger there from by this office at your expenses. You are entitled to make representation and adduce evidence if any on or before the above mentioned date." 8. Learned standing counsel for GHMC further submits that in reply to the show cause notice, dtd. 6/6/2023, the respondent No.6 has submitted explanation on 12/6/2023, stating that the subject property is in good condition by enclosing structural soundness certificate, dtd. 11/6/2023, issued by one Faraz Asssociates, Architects, Engineer & Surveyors (GHMC, License No.10), which reads as: "This is certify that I have inspected and examined of the school building of the "Krishnaveni Talent School, Fathenagar" English medium (Co-Education) at Ground, First and Second Floor Bearing Municipal No.10/3/112, situated at Opp.Pochamma Temple, Fateh Nagar Main Road and found that the building is a Pucca R.C.C. Building and is Structurally Sound and can be used for school purpose. I therefore here by certify that the said building is structurally safe as on date." 9. Learned standing counsel for GHMC submits that the Assistant City Planner, Circle-23, Moosapet, Kukatpally Zone, GHMC addressed a letter, dtd. 6/6/2023 to Executive Engineer, Moosapet Circle-23, GHMC, Hyderabad to inspect and report the structural stability of the subject property. Thereafter the Executive Engineer, Moosapet Circle-23, GHMC has submitted its report, dtd. 26/6/2023 which reads as: "Accordingly, the building bearing house Nos.10/3/112, Krishnaveni Talent School situated in Fathe nagar ward, has been inspected by the DEE/AEE on 24/6/2023 and submitting that as per the information obtained from the Krishnaveni Talent School Principal, the buildings were constructed 35 years ago and during inspection it is found that the slabs and beams reinforcement are exposed due to deterioration of rebar and also Dampness, Cracks are observed from slab and side walls. Hence, it is requested to take necessary action on buildings bearing house Nos.10/3/112, Krishnaveni Talent School to avoid unforeseen incidents. 10. Learned Standing Counsel for GHMC submits that both the petitioner as well as respondent authorities No.6 has replied to the show cause notice, dtd. 6/6/2023 and 9/6/2023 respectively along with relevant documents and also the competent authorities i.e., Executive Engineer, Mossapet Circle-23, GHMC, Hyderabad has conducted the physical inspection on the subject property and the report is also available with the respondent authorities and fairly states that respondent authorities will pass appropriate orders within two weeks from today. 11. Heard both sides. 12. It is pertinent to mention that petitioner and respondent No.5 are in dispute for the said property and that the petitioner has already filed application under Sec. 11 of the Arbitration and Conciliation Act, 1996, vide Arb.Appl No.179 of 2022 before this Court seeking appointment of sole arbitrator. In the matters pertaining to demolition of building, there should be greater significance attached to human lives rather than the internal disputes existing between tenants i.e., respondent Nos.5 and 6 and owner i.e., petitioner, as such this Court do not express any opinion on the violation of agreement of the lease, as both the parities can avail remedies available under law. This Court is more concerned about the safety of the pupil living in the building especially the school children and on perusal of the photographs filed in the affidavit, that two portions of the building are connected with iron sheets i.e., iron sky-walker and that the iron sky-walker seems to be dangerous for the children while using the said iron sky walker. 13. It is not out of place to mentioned that the authorities have already issued notices under Sec. 456 and 459 of the Act, further this Court in the case of Aswani Desai Vs Visakhapatnam Municipal and another's, 2000(2) ALT 2 . had categorically observed that if the building has to be demolished in the public interest to avert any danger to life of inhabitants as well as passers by, the Corporation has power to take necessary steps under Sec. 456 of HMC Act. 14. This Court In P.L.Lakshmi V.Greater Hyderabad Municipal Corporation and others, 2013(3) ALT 11 . had categorically observed that in un-numbered paragraph which reads as: "When the finding is that the structure is not stable and it is not safe for human habitation, in my opinion, there should be greater significance attached to human lives rather than the internal disputes existing between them. If the petitioner or for that matter, any other tenant of the said building, has some other dispute with the 3rd respondent owner, they are liable to be sorted out amicably elsewhere. It may be that the petitioner can as well insist upon the 3rd respondent to offer her right to occupy a portion in case the 3rd respondent is willing to construct a new building there, but however, those factors need not detain any further from the unsafe building from being pulled down. I am therefore, clearly of the opinion that when life of the tenants and those who are likely to come anywhere near the said building is at a serious peril or risk, such a building should be brought down. That is the safest way to preserve the human life. The supernumerary problems explained by the petitioner that she may not be able to secure a suitable accommodation in the same locality and that too at the same rate of rent currently paid by her, cannot be a factor for delaying the structure from being pulled down. That is the safest way to preserve the human life. The supernumerary problems explained by the petitioner that she may not be able to secure a suitable accommodation in the same locality and that too at the same rate of rent currently paid by her, cannot be a factor for delaying the structure from being pulled down. When the assessment of a subject expert reveals that the building is perilously close to collapse, it is totally unsafe to allow the human habitation any further there". In the instant case, issuance of such notice under Sec. 456 and 459 has already been followed and replies to the said notices stated to have already been submitted by the petitioner as well by the respondent No.6 to respondent No.4 , however no orders has been passed thereon." 15. Recording the submission made by learned counsel on either side and the fact that respondent No.4 had issued notice, bearing No.112/TPS/ACP/KPZ/GHMC/2023, dtd. 6/6/2023 to respondent No.6 and notice, bearing No.112/TPS/ACP/KPZ/GHMC/2023, dtd. 9/6/2023 issued to petitioner; and both the parties have replied to the said notices along with relevant documents and also the fact that the competent authority i.e., Executive Engineer inspected the subject property and submitted its report, dtd. 26/6/2023 before respondent authorities, hence, this Court deems it fit to direct the respondent authorities to pass subsequent speaking order on the notices dtd. 6/6/2023 and 9/6/2023 by considering the structural report submitted by the competent authority i.e., Executive Engineer, Moosapet Circle-23, Kukatpally Zone, GHMC as well as structural report, dtd. 11/6/2023 and also consider the instruction/directions passed in Aswani Desai and P.K.Lakshmi V.Greater Hyderabad Municipal Corporation, Hyderabad and others (cited 1st and 2nd supra) and pass appropriate orders as expeditiously as possible, preferably within a period of two (02) weeks from the date of receipt of copy of this order, by putting all the concerned parties on notice and communicate the same to the concerned parties. 16. However, it is made clear that, till the completion of above said exercise, respondent No.6 and official respondents shall take steps to ensure the safety of pupil living/studying in the building, especially the school students in all aspects. Accordingly this writ petition is disposed of. Miscellaneous applications, if any pending, shall stand closed. No order as to costs.