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2025 DIGILAW 1704 (TS)

K. Divya v. Commissioner, GHMC, Hyd and four

2025-12-04

LAXMI NARAYANA ALISHETTY

body2025
ORDER : LAXMI NARAYANA ALISHETTY, J. This Writ Petition is filed to issue a writ of Mandamus declaring the action of respondent Nos.1 and 2 in issuing Notice, dated 20.02.2015, vide No.S-III/TPS/C-X/GHMC/2015 under Section 452(1) of the Hyderabad Municipal Corporation Act, 1955, (hereinafter referred to as ‘the HMC Act, 1955’) and the further proceedings initiated through notice, dated 04.03.2015, issued under Section 636 of the Act, to demolish/remove the Pent House of premises bearing No.8-2-293/82/J- III/443/A/16, Orange Homes Impression, Road No.86, Jubilee Hills, Hyderabad, as illegal, arbitrary and in violation of Articles 14 and 300-A of Constitution of India and for consequential relief. 2. Heard Sri B.Venkat Rama Rao, learned Counsel for petitioner, Sri Midde Arun Kumar, learned Standing Counsel for respondent Nos.1 and 2 and Sri Ponnam Mahesh Babu, learned counsel for respondent No.3. 3. Brief facts of the case as averred in the writ affidavit are that one Surendra Kumar Reddy, owner of premises bearing Door No.8-2- 293/82/J-III on Plot No.443-A-16-111 in Sy.No.403/1 (Old), 120 (new) of Shaikpet Village, has obtained permission for construction of a residential building of Ground + two upper floors, vide Permit No. 118/94/2005, but has constructed Ground + three upper floors with cellar and sold the portions in the ground and two upper floors and retained the third floor (pent house) with built-up area of 2414 sq. ft. with 166.5 sq. yards undivided share (hereinafter “the subject property”); that he availed a loan from respondent No.4-Bank by mortgaging the subject property, however, as he committed defaulted in repayment, respondent No.4-Bank conducted an e-auction on 28.11.2013, in which the petitioner emerged as the highest bidder and after payment of the entire sale consideration of Rs.61,00,000/-, a Sale Certificate dated 09.01.2014 was issued in her favour and physical possession was delivered and that the petitioner also paid property tax for the year 2014-15. 3.1. While so, on 20.02.2015, a notice under Section 452(1) of the HMC Act, 1955 was served on the petitioner stating that the subject property was not covered by the sanctioned plan and that the BPS application submitted by the previous owner-Surendra Kumar Reddy had been rejected because of non-payment of the balance penalization fee and as such, the petitioner was called upon to show cause why the unauthorized structure, i.e., Pent house should not be demolished. The petitioner submitted replies on 24.02.2015 and 02.03.2015 stating that she was a bona fide e-auction purchaser and was unaware of the pendency or rejection of the earlier BPS application, nevertheless, respondent No.1 issued a further notice dated 04.03.2015 under Section 636 of the HMC Act directing removal of the alleged unauthorised construction. The petitioner again sought time through her reply dated 05.03.2015. 3.2. Aggrieved by rejection of BPS application of her predecessor-in- title, the petitioner preferred an appeal on 16.03.2015, under Rule 11 of the A.P. Regulation and Penalization of Unauthorizedly Constructed Buildings and Buildings constructed in deviation of the Sanctioned Plan Rules, 2007, (for brevity, hereinafter referred to as ‘the Rules, 2007’) before the Appellate Committee constituted under G.O.Ms.No.121, dated 13.05.2014 and the same is pending for adjudication, and as the said G.O. does not provide for interim protection against demolition during pendency of the appeal, she approached this Court by filing the present Writ Petition. 4. Learned counsel for petitioner submitted that respondent Nos.1 and 2 issued the impugned notices under Sections 452(1) and 636 of the HMC Act, without ascertaining the relevant facts, without conducting proper enquiry and without affording a reasonable opportunity to the petitioner. He further submitted that the authorities failed to consider that the BPS application was originally filed by the previous owner- Y.Surendra Kumar Reddy, and that its rejection was solely on the ground of non-payment of the balance penalization fee by him. 4.1. Learned counsel further submitted that the petitioner had responded to the notices by submitting replies dated 24.02.2015 and 02.03.2015, bringing to the notice of the authorities that she is a bona fide purchaser in a public e-auction conducted by respondent No.4-State Bank of India, however, without considering the said replies and without granting an opportunity to pay the balance penalization fee, respondent Nos.1 and 2 issued the impugned notice dated 04.03.2015 proposing demolition of the subject property. 4.2. Learned counsel further submitted that the petitioner has already availed the statutory remedy by filing an Appeal under Rule 11 of the Rules, 2007, and the same is pending before the Appellate Committee and that, when the petitioner is diligently pursuing the remedy available under the BPS scheme, the respondents ought not to have resorted to coercive steps such as demolition. 4.3. 4.3. Learned counsel further submitted that the respondents acted in violation of principle of audi alteram partem by not giving the petitioner an opportunity to putforth her case/contentions or pay the balance penalization fee before issuing the demolition notice. The petitioner being a bona fide purchaser in a public auction conducted by a nationalized bank is entitled to protection of the subject property and cannot be penalized for the defaults committed by the previous owner. 4.4. Learned counsel further submitted that since the BPS scheme is meant to regularize existing deviation, the petitioner had a legitimate expectation that the competent authority would consider her request for regularization, instead of taking drastic step of demolition of the subject property. He further submitted that when an appeal, a statutory remedy provided under the Act, preferred by the petitioner is pending before the Appellate Committee, any act of removal/demolition of the subject property by respondent Nos.1 and 2 would render the appeal to become infructuous. He further submitted that respondent Nos.1 and 2 ought to have exercised their discretion judiciously, particularly, considering the fact that the deviations were not made by the petitioner who is, in fact, a bona fide purchaser and that the petitioner is ready to comply with all the legal requirements including payment of balance penalization amount. 4.5. Learned counsel finally prayed to allow the Writ Petition, by setting aside the impugned notices issued under Sections 452(1) and 636 of the Act and consequently, to protect the subject property from demolition, pending disposal of the appeal filed by the petitioner before the Appellate Committee. 5. In support of his contentions, learned counsel for petitioner placed reliance on the following judgments:- 1. Judgment dated 27.12.1977 passed in Writ Appeal No.409 of 1976 {Municipal Corporation of Hyderabad reptd by its Special Officer Vs. Shamsuddin Hasan Khudankmal and another} by the erstwhile High Court of Andhra Pradesh. 2. Judgment dated 12.09.2022 passed in WP.No.29240 of 2022 by High Court of Andhra Pradesh. 3. Corporation Bank and anr Vs. Dr. Jayesh Kumar Jha, 2019 SCC Onokine Cal 2279 6. Shamsuddin Hasan Khudankmal and another} by the erstwhile High Court of Andhra Pradesh. 2. Judgment dated 12.09.2022 passed in WP.No.29240 of 2022 by High Court of Andhra Pradesh. 3. Corporation Bank and anr Vs. Dr. Jayesh Kumar Jha, 2019 SCC Onokine Cal 2279 6. In Shamsuddin Hasan Khudankmal ’s case (cited supra), the erstwhile High Court of Andhra Pradesh Court held as follows:- “A reading of Section 452 of the Act shows that if a building is constructed contrary to the provisions of the Act or the bye- laws and if the person concerned fails to show sufficient cause as to why the said building should not be removed, altered or pulled down, the Commissioner ‘may’ remove, alter or pull down the said building. It is not mandatory on the part of the Commissioner to remove or pull down the building.” 7. In Writ Petition No.29240 of 2022 , the High Court of Andhra Pradesh held as hereunder:- “If the deviations, as per the provisional order, are minor, minimal or trivial, or affect public at large or in public interest or not, or cause public nuisance or hazardous or dangerous to public safety including of the residents therein, require consideration by the competent authority of the corporation before resorting to the demolition. 8. In Dr. Jayesh Kumar Jha’s case (cited supra), the High Court of Calcutta held as under:- “Rules 8 and 9 of the SARFAESI Act deal with the stage anterior to the issuance of sale certificate and delivery of possession. Rule 9(8) of the said Act casts a duty upon the authorized officer to deliver the property to the purchaser free from encumbrances requiring the purchaser to deposit money for discharging the encumbrances.” 9. Per contra, learned Standing Counsel for respondent Nos.1 and 2- Corporation submitted that the impugned notices were issued to remove the unauthorized structure-pent house as the same is not covered by the sanctioned plan and the BPS application submitted by the owner- Y.Surendra Kumar Reddy was rejected in the year 2008 for non-payment of penalization fee. He further submitted that unauthorized construction cannot become authorized construction in view of the principle that no equity can flow from illegality. Therefore, respondent No.1, exercising his powers under the Act, has rightly issued the impugned notices and the petitioner failed to make out any case to set aside the same and prayed to dismiss the Writ Petition. He further submitted that unauthorized construction cannot become authorized construction in view of the principle that no equity can flow from illegality. Therefore, respondent No.1, exercising his powers under the Act, has rightly issued the impugned notices and the petitioner failed to make out any case to set aside the same and prayed to dismiss the Writ Petition. 10. Learned counsel for respondent No.3 submitted that the petitioner is claiming to be the owner of the subject property on the basis of the void sale certificate, since at the time of issuance of the sale certificate by respondent No.4-Bank, the subject property was an illegal/unauthorized construction and therefore, no enforceable rights/title/possession can be transferred to the petitioner under a sale certificate that is void ab initio. As such, the petitioner has no locus standi to challenge the action taken by respondent Nos.1 and 2 against such illegal/unauthorised construction and hence, prayed to dismiss the Writ Petition as the same is misconceived and devoid of merits. 11. This Court has given its earnest consideration to the rival submissions advanced by the learned counsel for both the parties and scrupulously perused the entire material available on record. 12. There is no quarrel as regards the proposition laid down in Shamsuddin Hasan Khudankamal ’s case (cited supra) and the judgment rendered in Writ Petition No.29240 of 2022 (referred supra). 13. In Shamsuddin Hasan Khudankamal ’s case (cited supra), it was held that the Commissioner may pull down or remove the unauthorized construction, but, while exercising such discretion, the Commissioner should not act arbitrarily or capriciously. By holding so, the High Court dismissed the Writ Appeal and declared the notice given by the Commissioner, Hyderabad Municipal Corporation to the respondent therein, to demolish the building on the sole ground that he had constructed it without obtaining prior permission of the Corporation, as invalid. 14. In the instant case, the subject property is allegedly an illegal/unauthorized structure being constructed in deviation of the sanctioned plan, for regularization of which, the predecessor-in-title of the petitioner has made BPS application. Thus, the facts of the present case are distinguishable with that of the aforesaid case. 15. The judgment in Dr. 14. In the instant case, the subject property is allegedly an illegal/unauthorized structure being constructed in deviation of the sanctioned plan, for regularization of which, the predecessor-in-title of the petitioner has made BPS application. Thus, the facts of the present case are distinguishable with that of the aforesaid case. 15. The judgment in Dr. Jayesh Kumar Jha ’s case (cited supra) is in respect of SARFAESI Act, particularly Rules 8 and 9 thereof, therefore, the said judgment is not applicable to the present case and is of no aid to the petitioner. 16. In the present case, admittedly, the BPS application submitted by the predecessor-in-title of the petitioner was rejected. The petitioner, being unaware of the said facts, is said to have purchased the subject property in an e-auction conducted by respondent No.4-Bank and a sale certificate dated 09.01.2014 was issued in her favour and since then, she has been in possession of the subject property. On being served with notices under Section 452(1) and 636 of the HMC Act, 1955, she gave replies and has filed the present Writ Petition challenging the said notices. 17. In the instant case, the petitioner has submitted her replies to both the notices issued under Section 452(1) and 636 of HMC Act, 1955, stating that she is a bonafide purchaser of the subject property and she was unaware of refusal of the BPS application made by her predecessor- in-title for regularization of the subject property till the receipt of notice under Section 452 of HMC Act and requested not to initiate further steps pursuant to the notices and prayed to grant some time. Further, it is also apt to note that the petitioner has availed the remedy of filing statutory appeal under Rule 11 of the Rules, 2007, against the rejection of BPS application made by her predecessor-in-title in respect of the subject property and the same is pending consideration. Pending adjudication of the appeal by the competent Appellate authority, it is neither reasonable nor judicious exercise of discretion by the Commissioner to proceed further in respect of the subject property. Any coercive action such as demolition/removal of the subject property would make the appeal filed by the petitioner before the Appellate Authority infructuous and therefore, coercive action of any manner should be deferred till the disposal of the appeal by the appellate authority. 18. Any coercive action such as demolition/removal of the subject property would make the appeal filed by the petitioner before the Appellate Authority infructuous and therefore, coercive action of any manner should be deferred till the disposal of the appeal by the appellate authority. 18. Furthermore, in the facts and circumstances of the present case, this Court is of the view that as the petitioner is a bona fide purchaser through e-auction conducted by a nationalized bank, she is entitled to a fair and transparent adjudication of all the issues affecting the property. 19. In the light of above reasons and the law laid down in the aforesaid judgments, the impugned notices dated 20.02.2015 and 04.03.2015, issued by respondent No.1 are unsustainable and the same are liable to be set aside. 20. In the result, the writ petition is allowed and the impugned notices, vide S-III/TPS/C-X/GHMC/2015, dated 20.02.2015, and S-III/TP/C- 10/GHMC/2015, 04.03.2015, are hereby set aside. However, it is made clear that the respondents-Corporation are at liberty to proceed further in the matter depending upon the outcome of the statutory appeal filed by the petitioner before the Appellate Authority. There shall be no order as to costs. 21. Miscellaneous petitions pending, if any, shall stand closed.