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2025 DIGILAW 793 (TS)

Saifuddin Lakhani v. State of Telengana

2025-06-09

B.VIJAYSEN REDDY

body2025
ORDER : B. VIJAYSEN REDDY, J. This writ petition is filed by the petitioner seeking to declare the inaction of respondents No.2 to 4 in taking action in respect of the unauthorized and illegal construction of lift and pent house being undertaken by respondent No.5 in the premises bearing H.No.5-8- 505/A/4, Mega Residency, situated at Chirag Ali Lane, Hyderabad, as being illegal, arbitrary and unconstitutional. 2. It is submitted that the petitioner purchased two (2) flats in the 2 nd floor, total admeasuring 1800 square feet, in premises bearing H.No.5-8-505/A/4, Mega Residency, situated at Chirag Ali Lane, Hyderabad under registered sale deed and since then the petitioner along with his family had been residing therein. The building was constructed by one Mr. Sarwar Afzaly in 1996. The foundation laid down by the builder bears structural strength for construction of ground + 2 floors and as per the sanctioned plan there was no provision for construction of lift. Respondent No.5 is having two (2) flats in the ground floor purchased in 1996. The building comprises of ground + 2 upper floors whereas third parties are in occupation of the first floor. 3. It is submitted that respondent No.5 without intimating the flat owners in the 1 st and 2 nd floors and without any valid permission started digging the ground on the south-western side of the flats of the petitioner with an intention to construct lift exclusively for him as he has unauthorizedly and illegally constructed pent house on the terrace. In fact, the terrace rights are vested with all the flat owners with undivided share over the land. Respondent No.5 does not have any exclusive right to construct pent house over the terrace. If respondent No.5 installs lift leading to terrace, it will lead to obstruction of ventilation to the petitioner's flat and it will cause nuisance to the petitioner. In fact, the lift is facing the master bedroom of the petitioner's flat. It is submitted that the structural engineer and the architectural engineer have suggested respondent No.5 as well as the petitioner that if the ground is dug for installation of lift, it would affect the entire building structures. Immediately, the petitioner lodged complaint before the concerned Police but no action has been taken, as such, the petitioner was constrained to approach this Court. 4(a). Immediately, the petitioner lodged complaint before the concerned Police but no action has been taken, as such, the petitioner was constrained to approach this Court. 4(a). In the counter affidavit filed by respondents No.2 to 4, it is stated that on receipt of the complaint from the petitioner, the respondent authorities inspected the site and observed that the building was constructed twenty five (25) years ago and it comprises of cellar, ground + 3 upper floors and pent house on 4 th floor. Respondent No.5 and others were proceeding with the erection of lift by digging the earth below 4 feet and erected iron gridders for installation of the lift. The respondent authorities stopped the construction work and disbursed the labourers working in the site. The respondent No.5 submitted representation dated 27.07.2016 before the respondent authorities seeking permission for installation of lift and the same was rejected by letter dated 28.08.2016 issued by the respondent authorities wherein respondent No.5 was directed to stop the construction for installation of lift. Further, respondent No.5 was requested to submit building application through online for process for construction/erection of lift as required under Sections 428 and 433 of the Greater Hyderabad Municipal Corporation Act 1955 (for short 'Act'). 4(b). Aggrieved thereby, respondent No.5 filed O.S. No.2072 of 2016 before the learned IV Junior Civil Judge, City Civil Court, Hyderabad (for short 'trial Court') and obtained temporary injunction order in I.A. No.329 of 2016. Meanwhile, the order dated 16.09.2016 in W.P. No.30420 of 2016 (the instant writ petition) was passed by this Court directing the respondent authorities to stop the construction for installation of lift being undertaken by respondent No.5. Thereafter, on 19.09.2016, the respondent authorities inspected the site and found that respondent No.5 has already erected the lift in full shape; panchanama was conducted on the same day and letter dated 19.09.2016 was issued to respondent No.5 directing him to not to proceed with any type of construction. Further, the respondent authorities addressed letter dated 18.10.2016 to the concerned Police requesting them to take necessary steps by way of keeping vigilant watch over any fresh construction at the premises bearing No.5-8-505/A/4, Chirag Ali Lane, Hyderabad. It is further stated that the respondent authorities will take necessary steps regarding the erection of lift based on the order passed by the trial Court. 5. Heard Mr. G. Arun Kumar, learned counsel for the petitioner; Mr. It is further stated that the respondent authorities will take necessary steps regarding the erection of lift based on the order passed by the trial Court. 5. Heard Mr. G. Arun Kumar, learned counsel for the petitioner; Mr. Ashfaq Ahmed, learned counsel for respondent No.5; and Mr. Midde Arun Kumar, learned Standing Counsel for GHMC, appearing for respondents No.2 to 4, and perused the material on record. 6. Learned counsel for the petitioner submitted that the pent house was illegally constructed by respondent No.5 and admittedly no permission was granted to respondent No.5 for erection of lift. Thus, respondents No.2 to 4 may be directed to remove the unauthorized lift from the subject premises. 7. Learned counsel for respondent No.5 placed on record the additional material papers which have been filed on 24.03.2025 and submitted that the pent house which was unauthorizedly constructed was later regularized vide proceedings dated 21.04.1997. The lift was installed in 2016 after duly submitting the application dated 27.05.2016 before the respondent authorities seeking permission for sanction for installation of lift. As the respondent authorities did not respond for a period of one (1) month, the permission for erection of lift is deemed to have been granted, as such, respondent No.5 issued notice under Section 440 of the Act dated 01.07.2016 to respondents No.2 to 4 intimating them that he is proceeding with the installation of lift. It is further submitted that at the time when building application dated 27.05.2016 was submitted by respondent No.5, there was no online process. Thus, physical application was submitted and permission is deemed to have been granted. As the said application was not rejected for a period of one (1) month, notice under Section 440 of the Act dated 01.07.2016 was duly issued to respondents No.2 to 4. Learned counsel further submitted that lift is meant for the benefit of all the flat owners. 8. Learned counsel for respondent No.5 submitted that the flats in the entire building excepting two (2) flats which are owned by the petitioner, belong to respondent No.5 and his family members and that respondent No.5 and his family members would never object the petitioner from using the lift. 9. According to the learned counsel for the petitioner, the pent house was unauthorizedly constructed but as per the regularization proceedings dated 21.04.1997, the same was regularized. 9. According to the learned counsel for the petitioner, the pent house was unauthorizedly constructed but as per the regularization proceedings dated 21.04.1997, the same was regularized. The record reveals that respondent No.5 has applied for permission for erection of lift and as there was no response from the respondent authorities for a period of one (1) month, notice under Section 440 of the Act was issued intimating the respondent authorities that respondent No.5 was proceeding with installation of lift as per the deemed permission. 10. Learned Standing Counsel for GHMC submitted that the suit in O.S. No.2072 of 2016 is pending before the trial Court and appropriate action will be taken in accordance with law. 11. Taking note of the fact that the lift was already erected based on the deemed permission and that respondent No.5 does not have any objection if the lift is used by the petitioner, at this juncture, this Court is not inclined to entertain the writ petition. 12. As it is stated that the injunction order has been passed by the trial Court in I.A. No.329 of 2016 in O.S. No.2072 of 2016, this writ petition is disposed of directing respondents No.2 to 4 to take appropriate action subject to the outcome of the said suit. The trial Court is directed to decide the validity of the deemed permission obtained by respondent No.5 by framing necessary issue in the suit. There shall be no order as to costs. As a sequel thereto, miscellaneous applications, if any, pending in the writ petition stand closed.