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2025 DIGILAW 1623 (TS)

G. Padma v. Greater Hyderabad Municipal Corporation

2025-11-25

LAXMI NARAYANA ALISHETTY

body2025
ORDER : LAXMI NARAYANA ALISHETTY, J. This Writ Petition is filed to issue a writ of Mandamus declaring the proceedings in Order No.647/ACP/TPS/Cir-IX/CZ/GHMC, dated 01.05.2015, of respondent No.2 as illegal, arbitrary and contrary to the regularization scheme and to set aside the same and consequently, to direct respondent Nos.1 and 2-Corporation not to demolish the petitioner’ house in Ground Floor of Laxmi Arcade bearing Municipal No.2-2-647/77/F, Srinivasanagar Colony, Bagh Amberpet, Hyderabad (hereinafter referred to as ‘subject flat’). 2. Heard Sri P.Vishnuvardhan Reddy, learned Counsel for petitioner, Sri G.Madhusudhan Reddy, learned Standing Counsel for respondent Nos.1 and 2. Though, Sri E.Shiva Kumar, learned Counsel entered appearance on behalf of respondent Nos.3 and 4, did not appear before this Court. 3. Learned counsel for petitioner submitted that petitioner purchased a land admeasuring 40 square yards under registered sale deed No.796/1995, dated 07.03.1995, and subsequently entered into agreement with the builder on 29.12.1995 for construction of a flat; that the subject flat was constructed in stilt floor of Laxmi Arcade; and that the same was regularized vide Permit No.171/17031, dated 29.05.1998. He further submitted that one K.Ramadevi and two others filed W.P.No.24463 of 2001 and the same was disposed of with a direction to respondents therein to consider the representation dated 05.08.2001, within a period of 4 weeks and thereafter, contempt was filed and the same was closed, since the petitioner's flat was regularized. He further submitted that petitioner has filed a suit vide O.S.No.3523 of 2002, on the file of X Junior Civil Judge, City Civil Court, Hyderabad, for injunction and in the said suit, respondent Nos.1 and 2-Corporation filed the written statement stating that petitioner got regularized the subject flat by playing fraud, however, the said suit was decreed by judgment dated 26.04.2004. 3.1. 3.1. Learned counsel further submitted that respondent Nos.1 and 2- Corporation issued proceedings vide Lr.No.647/77/F/2/2/02/08, dated 10.07.2008 to the developer for demolition of flat by revoking Permit No.462/20, dated 30.06.1994, under Section 450 of GHMC ACT , 1955; that petitioner filed W.P.No.14997 of 2008, challenging the proceedings dated 10.07.2008, whereas one T.Ramalingeswara Sharma filed Writ Petition vide Writ Petition No.745 of 2008, challenging the action of respondents in not cancelling the regularization of the petitioner’s flat, vide permit No.171/17031, dated 29.05.1998; that both the said Writ Petitions were disposed of by a common order dated 04.08.2014, setting aside the proceedings dated 10.07.2008, with liberty to respondents' corporation to issue show cause notice to the petitioner and pass appropriate orders, after duly considering the explanation of the petitioner, in accordance with the procedure laid down under GHMC ACT ; and that respondent No.2, in compliance of the said common Order, issued show cause notice dated 15.12.2014, under Sections 452(1) and 461(1) of HMC Act, 1955, to the petitioner; that petitioner submitted her explanation dated 07.04.2015, however, respondent No.2 issued impugned proceedings dated 01.05.2015, mechanically, by rejecting the reply submitted by the petitioner. He further submitted that subject flat was regularized in the year 1998 as per the provisions of G.O.Ms.No.243, MA, dated 22.05.1996 and the impugned proceedings were issued, about 17 years after regularization, without referring to the said G.O. He further submitted that petitioner has been paying house property tax from the date of construction in the year 1996 and that the subject flat was regularized on payment of Rs.22,000/- and also on compliance of necessary requirements under G.O.Ms.No.243, MA, dated 22.05.1996. He further submitted that scheme of regularization was to facilitate the regularization of unauthorized constructions on payment of penalty and compound fee and the impugned proceedings issued by the respondent No.2 clearly shows that the same was passed, without examining the case of the petitioner and without referring to the said G.O, only on the ground that the subject flat was constructed in stilt portion which is exclusively meant for parking purpose. He finally submitted that once the subject flat was regularized in terms of G.O.Ms.No.243, MA dated 22.05.1996, it is not open for respondent Nos.1 and 2-Corporation to initiate proceedings once again and adjudicate the matter afresh and hence, the impugned proceedings dated 01.05.2015 is bad in law and unsustainable and prayed to allow the Writ Petition. He finally submitted that once the subject flat was regularized in terms of G.O.Ms.No.243, MA dated 22.05.1996, it is not open for respondent Nos.1 and 2-Corporation to initiate proceedings once again and adjudicate the matter afresh and hence, the impugned proceedings dated 01.05.2015 is bad in law and unsustainable and prayed to allow the Writ Petition. 4. Learned Standing Counsel for respondent Nos.1 and 2 by referring to the counter submitted that originally permission was granted for construction of residential building consisting of stilt+3 upper floors vide permit No.462/20, dated 30.06.1994 with a condition that party should not convert the parking space in the stilt floor into any other purposes, as per the undertaking dated 01.12.1993, however the subject flat was constructed in stilt floor parking area contrary to the sanctioned plan and that the petitioner herein by suppressing and misrepresenting the facts, got the subject property regularized vide Permit No.171/17031, dated 29.05.1998. He further submitted that respondents' Corporation has taken steps against the illegal construction in compliance of common Order dated 04.08.2014 in W.P.Nos.745 and 14997 of 2008, inspected the site and noticed that subject flat was constructed in the stilt floor which is meant for parking in violation of the provisions of HMC Act, 1955, building bye-laws and the sanctioned plan, therefore, respondents' corporation has rightly issued notice dated 15.12.2014, under Sections 452(1) and 461(1) of HMC Act; that respondents' Corporation has considered the reply dated 07.04.2015, submitted by the petitioner, as the reply submitted by the petitioner was not satisfactory, the permit No.460/20, dated 30.06.1994 was revoked vide proceedings dated 10.07.2008 by exercising powers under Section 450 of HMC Act, 1955 and by duly following the procedure under law. He further submitted that respondent No.1 has issued notice under Section 636 of HMC Act, 1955, dated 04.06.2015 and directed the petitioner to vacate and remove the authorized subject flat constructed in the stilt floor. Learned Standing Counsel for respondent Nos.1 and 2 finally submitted that writ petition is devoid of any merit and the petitioner is not entitled to seek indulgence of this Court, as the subject flat was constructed in clear violation of the sanctioned plan and therefore, the Writ Petition is liable to be dismissed. 5. Learned Standing Counsel for respondent Nos.1 and 2 finally submitted that writ petition is devoid of any merit and the petitioner is not entitled to seek indulgence of this Court, as the subject flat was constructed in clear violation of the sanctioned plan and therefore, the Writ Petition is liable to be dismissed. 5. Perusal of the record discloses that originally, permission was obtained for construction of residential building consisting of stilt + 3 upper floors vide permit No.460/20, dated 30.06.1994 and it is relevant to note that the said permission was subject to condition that party should not convert the parking space in the stilt floor for any other purposes, as per the undertaking dated 01.12.1993. It is not in dispute that the subject flat has been constructed in stilt floor, which is in clear violation of the sanctioned plan and the Undertaking dated 01.12.1993. Though it is contended that the subject flat was regularized under G.O.Ms.243 MA, dated 22.05.1998, it is the specific contention of the respondents' corporation that regularization was obtained by suppressing the said facts. 6. Be that as it may, the respondents' corporation has revoked Permit No.462/20, dated 30.06.1994 by exercising powers under Section 450 of HMC Act vide proceedings dated 10.07.2008, and the said proceedings was challenged by the petitioner by filing W.P.No.14997 of 2008 on the ground that the said proceedings were issued in the name of the builder but no notice was issued to the petitioner. Another Writ Petition vide Writ Petition No.745 of 2008 was filed by one T.Ramalingeswara Sharma challenging the action of respondents-Corporation in not cancelling the regularization of the petitioner’s subject flat. Both the said Writ Petitions were disposed of by this Court, vide Common Order dated 04.08.2014, by setting aside the proceedings dated 10.07.2008 and liberty was granted to respondents' corporation to issue show cause notice to the petitioner and take appropriate action in accordance with law by duly following the procedure laid down under GHMC ACT . 7. Here, it is apt to note that the impugned proceedings were purportedly issued by the respondents-Corporation in compliance of the common order passed by this Court in Writ Petition Nos.14997 and 745 of 2008. The issue involved in Writ Petition No.745 of 2008 was with regard to regularization of the petitioner’s subject flat, which the petitioner therein sought to cancel. Here, it is apt to note that the impugned proceedings were purportedly issued by the respondents-Corporation in compliance of the common order passed by this Court in Writ Petition Nos.14997 and 745 of 2008. The issue involved in Writ Petition No.745 of 2008 was with regard to regularization of the petitioner’s subject flat, which the petitioner therein sought to cancel. A perusal of common order passed in Writ Petition Nos.745 and 14997 of 2008 goes to show that this Court has not delved into the merits of the case and merely on the ground that the proceedings dated 10.07.2008 challenged in Writ Petition No.14997 of 2008 were issued to the builder and not to the petitioner herein, this Court set aside the said proceedings, whereby Permit No.460/20, dated 30.6.1994, was revoked. This Court has, however, given liberty to the respondents-Corporation to issue a show cause notice to the petitioner and, after receiving explanation, if any, from the petitioner, to follow the due procedure laid down in the GHMC ACT and pass appropriate orders in accordance with law. 8. The contention of the respondents-Corporation is that in compliance of the aforesaid common order passed by this Court, the impugned proceedings were issued. This Court has scrupulously perused the impugned proceedings. In the impugned proceedings, there is no mention or whisper with regard to the regularization of the petitioner’s subject flat, which was said to be regularized as per GO.Ms.No.243, MA, dated 22.05.1996. The respondents-Corporation have not adverted to the regularization proceedings of the petitioner’s subject flat, the cancellation of which was subject matter in Writ Petition No.745 of 2008. Therefore, it is implied that the regularization proceedings of the petitioner’s subject flat is still subsisting, and in such an event, the respondents-Corporation without going into the root of the issue, the genesis of the matter, i.e., regularization proceedings issued in respect of the subject flat of the petitioner, have issued the impugned proceedings. The true letter and spirit of the order passed by this Court in Writ Petition Nos.745 and 14997 of 2008, in compliance of which the present impugned proceedings were issued, is found missing. 9. It is common knowledge that through regularization proceedings, the unauthorized constructions would be regularized on payment of prescribed penalty and compounding fee. The true letter and spirit of the order passed by this Court in Writ Petition Nos.745 and 14997 of 2008, in compliance of which the present impugned proceedings were issued, is found missing. 9. It is common knowledge that through regularization proceedings, the unauthorized constructions would be regularized on payment of prescribed penalty and compounding fee. In the instant case, the subject flat, which was constructed in the stilt floor, was regularized as per GO.Ms.No.243, MA, dated 22.05.1996, vide Permit No.171/10731, dated 29.05.1998. In other words, vide Permit No.171/10731, dated 29.05.1998, the petitioner’s subject flat was regularized way back in the year 1998. Therefore, the respondents-Corporation have to primarily deal and consider the issue with regard to regularization of the petitioner’s subject flat and follow due procedure contemplated under law and the provisions of the GHMC ACT in case they intend to take any action against the subject flat. However, such an exercise was not undertaken by the respondents-Corporation and they have straightaway issued the impugned proceedings for initiation of action for removing/pulling down the petitioner’s subject flat. 10. In the above analysis of the case, this Court is of considered opinion that the respondents-Corporation have not followed the due procedure contemplated under law while initiating action against the subject flat, which is alleged to have been unauthorisedly constructed. Hence, this Court deems it appropriate to remand the matter to the respondents-Corporation for fresh consideration of the matter in accordance with the provisions of the GHMC ACT . 11. Accordingly, this Writ Petition is disposed of and the matter is remanded to the respondents-Corporation with a direction to consider the entire issue afresh, i.e., the issue with regard to cancellation or otherwise of the regularization of the petitioner’s subject flat, follow due procedure contemplated under law and the provisions of the GHMC ACT and pass appropriate orders thereon, by duly issuing notice and giving opportunity of hearing to the petitioner and all other parties concerned and accordingly, take necessary steps in pursuance thereof. 12. Miscellaneous Petitions pending, if any, shall stand closed. No costs.