N. Suryanarayana and Another vs Municipal Corporation of Hyderabad and Others

B. Sudershan Reddy, J.—The petitioners in the instant writ petition pray for issue of an appropriate writ, order or direction, particularly, one in the nature of writ of Certiorari, calling for the records relating to notice No. 179 Dated 9-1-1996 on the file of the 1st respondent and quash the same. The petitioners also pray for a consequential direction directing the respondents to consider the application of the petitioners dated 11-1-1996 and further to direct the respondents to accept the revised plan purported to have been submitted by the petitioners in respect of the premises in question.

The petitioners claim to be the true and absolute owner, of plots bearing Nos. 6-3-609/37 and 609/38 situated at Anandnagar Colony at Khairtabad, Hyderabad. The petitioners are stated to have entered into an agreement with a third party for construction of multi-stories apartments. The petitioners having applied for necessary sanction and permission, obtained the same from the 1st respondent-Corporation vide Permit No. 2/69/67in Letter No. 105/TF-5/94 Dated 9-3-1995. The sanction was accorded by the 1st respondent Corporation for construction of stilt plus5 upper floors for residential flats and/ according to the petitioners, they have constructed the multi-storied complex strictly in accordance with the sanctioned plan and the construction is stated to be nearing completion.

The petitioners state that after the commencement of the construction, it was noticed that the proposed ground floor portions did not have any marketability, as the proposed building is situated adjacent to ''Naala'', running West to East, adjacent to the building and popularly known as ''Chintal Basti Naala'' and the said ''Naala'' is stated to be full of drainage and other ''murky'' water. It is stated that "in order to adjust this eventuality, a small tenament was raised in the 6th floor to accommodate the petitioners".

The petitioners complain that the authorities of the respondent-Corporation, without any reason or basis, started interfering with the construction even after showing the sanctioned plan and even after satisfying them that there is no public inconvenience nor has there been any hazardous construction made by the petitioners. However, it is an admitted case that the petitioners have made constructions on the 6th floor without any prior sanction and permit from the respondent-Corporations. The petitioners were served with a Notice dated 9-1-1996 issued u/s 452 of the Hyderabad Municipal Corporation Act (for short the Act) on 10-1-1996, and the petitioners, thereafter, stated to have submitted a representation dated 11-1-1996, bringing the true and correct facts to the notice of the authorities. The petitioners assert that the construction made by them is in no way objectionable to any of the neighbours and it does not cause any obstruction, whatsoever/to any person or property and resulting in any hazardous or inconvenience to anyone. The petitioners claim that they have already made a representation undertaking to submit a revised plan, but the same was not taken into consideration and the respondents are about to demolish the construction. Hence the writ petition.

The petitioners filed W.P.M.P. No. 429 of 1996 on 17-1-1996 to implead the Secretary to Government, Municipal Administration Department as the 4th respondent and, in the affidavit filed in support of the said application, it is stated that the construction on the 6th floor cannot be said to be a deviation which is opposed to public interest or which causes public nuisance and the same would not in any way endanger the safety, including the prospective residents. It is furthar submitted that they have already made an application to the (proposed) respondent-Secretary Municipal Administration for the purpose of exempting/relaxation of the terms and conditions of the permit on 16-1-1996 itself. The said application is stated to be pending before the Government. The petitioners, therefore, pray for a further direction, directing the respondent-Government to consider the application dated 16-1-1996 filed by the petitioner and take and appropriate decision thereon.

The respondent Municipal Corporation filed a detailed counter-affidavit stating that the petitioners are indulging in misrepresentation of facts. It is stated, in categorical terms, that the petitioners have constructed the 6th floor unauthorisedly, thereby increasing the height of the building to more than 15 metres, attracting the provisions of Multi-storied Building Regulations, 1981, and the area, in which the proposed construction is made, is stated to be a restricted zone, as per Zonal Development Plan, and no building of more than 15 metres height can be permitted to be constructed. The unauthorised construction raised by the petitioners, by way of 6th floor, has an area of 3000 Sq. feet, which is similar and identical to the ground and other floors. It is stated that there are other deviations also in the matter of construction and, the petitioners have not adhered to the sanctioned plan. The petitioners are stated to have failed to maintain proper set-back around the building , as per the approved plan, and also covered the balconies, thereby increasing the Floor Space Index. An office-room is alleged to have been constructed to the stilt floor which is strictly meant for parking. A show-cause notice was issued to the petitioners, for which the petitioners replied on 11-1-1996. Since the reply was not convincing, a notice u/s 636 of the Act was issued. The respondent- Corporation assert that the 6th floor constructed by the petitioners is totally illegal and contrary to the Multi-Storied Buildings Regulations and the Zonal Development Plan apart from the construction being without permission and sanction. It is stated that the Municipal Corporation is under obligation to take necessary steps for demolishing such illegal construction. It is stated that the petitioners did not file any revised plan and applied (sic apply) for any relaxation.

In the reply affidavit, the petitioners, once again, assert that there are no deviations, except for a minor deviation, and the office-room, constructed In the stilt floor, is only temporary, and it is for the purpose of managing the total construction. The petitioners, however, in categorical terms admitted the receipt of show-cause notice and a reply thereto by them. The petitioners complain that the proposal to demolish is patently arbitrary and highhanded and assert that they are entitled for the relaxation for construction of the 6th floor, as such relaxation was granted by the Government in case of other builders.

In the instant writ petition, there is no dispute that the petitioners, without any authority of law and in high-handed manner, constructed a complete extra floor without prior permission and the sanctioned plan. The petitioners have also made false submissions in the affidavit filed in support of the writ petition stating that "in order to adjust this eventuality, a small tenament was raised in the 6th floor to accommodate the petitioners. It is submitted that the constructions otherwise has been in accordance with the sanctioned plan". Whereas the Municipal Corporation filed a detailed counter stating that the petitioners have constructed an extra floor with an area of 3000 Sq. feet and the said fact is not disputed by the petitioners in the reply affidavit. It is, therefore, safe to conclude that the petitioners have constructed an extra floor without necessary permission and made a false statement in the affidavit filed in support of the writ petition. This conduct of the petitioners would be enough to dismiss the writ petition. The petitioners are not entitled, as it is not permissible under law, to make any extra construction without necessary sanction and approval from the respondent-Corporation.

The records are produced by the respondent Corporation pursuant to the Rule nisi issued and the same would show that the respondent-Corporation issued notice under Sec-452 of the Act which is, admittedly, received by the petitioners on 10-1-1996. The petitioners submitted their explanation immediately, once again, making an incorrect statement that they have raised only a ''Penthouse'' over the 6th floor but stated that they were ready and willing to submit revised plan for the so-called 6th floor" within ten days. The petitioners have further admitted that there was some minor changes in the construction of balcony. The representation was considered and the same was rejected and a notice u/s 636 of the said Act was issued on 12-1-1996.

The learned counsel for the petitioners submits that the action of the respondent-Corporation in proposing to demolish the construction is totally unreasonable and arbitrary. The learned counsel also submits that the notice dt. 9-1-1996 issued by tine respondent-Corporation u/s 452 of the Act is ultra vires, as the petitioners have not violated the provisions contained in Sections 428 and 433 of the Act. In the notice dt. 9-1-1996, it is categorically stated that the petitioners have deviated from the sanctioned plan and the same reads as follows:

"You are deviated from the sanctioned plan i.e. maintained setback 0''.0" to 10''.06" instead of 13''-3" after leaving the "TOTLOT"; (2) Deleted balconies are constructed and enclosed/coured the open type balconies against the sanctioned plan. (3) Laid the R.C.C roof at Sixth (6) floor illegally and un-authorisedly without permission."

There is no dispute by the petitioners about these violations, except a vague reply and assertion that there are ''no deviations''. Admittedly, the petitioners laid the 6th floor without the sanctioned plan and also it is admitted that there is "some deviation with regard to construction of balconies". It is clear from Section 428 of the said Act that "Every person, who intends to erect a building, shall give to the Commissioner notice of his said intention in a form, obtained for this purpose u/s 435, specifying the position of the building intended to be erected, the description of building and other details. The same provision also would make it clear ''to erect or re-erect a building'' means any material alteration or enlargement of any building. In the instant case, there cannot be any doubt that the petitioners have indulged in the acts of enlargement of the existing building, and Section 433 also commands that every person, who intends to make any addition to a building and alteration, shall have to give notice to the Commissioner in a form obtained for the purpose u/s 435 of his intention to do so and furnish all details thereto, as required. It is obvious that the petitioners have violated both Sections 428 and 435, as alleged by the respondent-Corporation in its notice Dated 9-1-1996. The respondents- Corporation, therefore, rightly initiated steps under Sec-452 of the Act by issuing written notice, directing the petitioners herein to alter or amend, so that the construction is to be in conformity with the sanctioned plan and also directed the petitioners to submit why the construction, found contrary to the sanctioned plan, should not be removed or altered or amended or pulled down. I do not find anything wrong with the notice; no illegality as such is committed by the respondent-Corporation in issuing the notice.

The respondent-Corporation, after considering the reply submitted by the petitioners to the notice dated 9-1-1996, passed orders, rejecting the claim of the petitioners, and issued a further notice, in exercise of its powers u/s 636 of the Act, as, admittedly, the construction of 6th floor was without any written permission of the Commissioner, as is the requirement under the law.

It is submitted by the learned counsel for the petitioners that since the. whole construction is not without any sanctioned plan, the respondent- Corporation could not have issued notice u/s 452, merely because some addition is made by the petitioners without necessary permission. The argument is required to be noted only to be rejected. The submission is totally misconceived. A bare reading of the provisions, Sections 428, 433, 435 and 452 of the said Act would amply demonstrate that the Corporation is entitled to take all such necessary steps for the demolition of any construction made without prior permission from the Municipal Corporation and ''all such constructions'' mean and include any ''additions or alterations'' within the meaning of Sections 428 and 433 of the said Act.

The learned counsel for the petitioners relied upon a Division Bench Judgment of this Court in Municipal Corporation of Hyderabad v. Shamsuddin Hassan Khudamutmai and another 1978(1) ALT 20, in which the Division Pench held that it is not mandatory on the part of the Commissioner to remove or pull down the building, but the same is left to the discretion of the Commissioner either to remove or pull down the building and such discretion should not be exercised in an arbitrary and capricious manner but reasonably depending on the circumstances of the case. This judgment does not help the case of the petitioners, as I am of the opinion that the respondents have not exercised their discretion in an arbitrary and capricious manner and it cannot be said that the deviation in question is a minor one. The learned counsel for the petitioners further placed reliance upon a Judgment of this Court in Srinath Construction Company, a Registered Partnership Firm rep. by its Managing Partner Shri Shiv Charan v. Municipal Corporation of Hyderabad rep. by its Special Officer 1988 (1) ALT 239, in which case, my learned brother Honourable Justice M.N. Rao held that "Section 636, being general in nature, and as additions to a building are specifically covered by Section 433, issue of notice u/s 636 in respect of the cases governed by Section 433 is clearly illegal" and further held:

"From a reading of the provisions of the aforesaid sections, it is fairly clear that the notice contemplated u/s 433 is confined to cases, of additions, alterations or repairs to a building. In respect of such additions/ alterations or repairs, if done contrary to any of the provision as of the Act, or the rules, the Commissioner is empowered, u/s 452 of the Act, to issue a notice, calling upon the person concerned to show sufficient cause why the building shall not be removed or altered or pulled down. Section 454, which is more comprehensive, takes in all cases of unauthorised construction and the scope of the section is not confined to additions or alterations, since the latter are specifically covered by Section 433 and 452 a special provision prevails over a general provision. As the present case squarely falls within the ambit of Section 433, it being a case of addition, notice u/s 452 of the Act is mandatory. From the record, it is clear that the notice was given u/s 452, but straightaway notice was issued u/s 636 of the Act".

In the instant case, the respondent-Corporation did not issue notice u/s 636 of the Act straight away but the same was preceded by a notice u/s 452 of the Act. Therefore, the action on the part of the respondents and the proceedings, initiated by it, is strictly in conformity with the Judgment, and I fail to understand as to how it can be said that the action of the respondents is contrary to the said Judgment.

The learned counsel further relied upon a Full Bench Judgment of this Court in 3 ACES, Hyderabad Vs. Municipal Corporation of Hyderabad, and submits that, in every case, the Commissioner has to exercise his discretion either to order for demolition or not and it is not as if the Commissioner is duty-bound to order demolition in each and every case. In fact, the said Judgment does not render any assistance what-so-ever to the submissions made by the petitioners'' counsel. It is true that, in every case, the Commissioner need not order for the demolition as such, but he may consider any other feasible or alternative, within the frame-work and the expression used in Section 452 of the Act, is to be understood in its proper context. But, in what manner can it be said that the discretion exercised by the respondents in the instant case suffers from any vice. The petitioners have constructed a complete floor without any sanctioned plan and necessary permissions from the respondent-Corporation. The construction is stated to be contrary to the Zoning Regulations and the Zonal Development Plan and, in such a view of the matter, it cannot be said that the decision of the Commissioner, to order for the demolition is, illegal. In fact, the Full Bench, after noticing various Judgments, held as follows:

"We have already referred to the latest judgment of the two-judge Bench of the Supreme Court in State of Maharastra''s case (supra 11) and extracted the relevant passages which clearly lay down "that the tendency of raising unlawful constructions and unauthorised encroachments is increasing in the entire country and such activities are required to be dealt with by firm hands. "In view of the above judgments, we are also of the opinion that though the word used in Section 452 of "The Act" is "may" and it is not mandatory, the same must be understood in the light of the above observations extracted from the judgments of the Supreme Court. Having regard to the above observations of the Supreme Court, if, in any given case, the Commissioner comes to the conclusion that the construction deserves to be demolished, that decision, having been taken in public interest, should not be interfered with normally by the Courts".

In more or less similar circumstances, the Division Bench of this Court, in Municipal Corporation of Hyderabad, rep. by its Commissioner v. Asadullah Pasha 1990(2) ALT 514, held,

"It will be noticed that in the Writ Petition, the provisions of Section 452 and 636 of the Hyderabad Municipal Corporations Act have not been challenged as ultra vires of any of the provisions of the Constitution. The notice dated 20-5-1986 is strictly in accordance with Section 636. It is not within the province of the Court to fix the time within which the removal should be done, as it should be left to the Commissioner himself. It is clear from the report of the Commissioner appointed by this Court, which we have already reproduced, that unauthorised construction was made. There is nothing Illegal in the notices issued by the Municipal Corporation . either u/s 461 or Section 452 or Section 636. A bare cursory look at the sanctioned plan and the unauthorised construction as reported by the Advocate-Commissioner, shows that the writ petitioner approached mis Court with unclean hands in making wrong statements. When we look at the report it will be clear that a well-built structure has been constructed on the fourth floor and at the top of that structure, there is the overhead tank. In the circumstances, we are constrained to set aside the impugned order of the learned single Judge and dismiss the Writ Petition".

It is fairly well-settled that this Court in exercise of its power under Article 226 of the Constitution of India, does not sit in appeal on the statutory and administrative decisions taken by the authorities. It does not substitute its own view for that of the concerned authorities. This Court is not concerned with the merits of the decision as such, but with decision making process/ and Court can interfere in a Judicial review proceedings, if the decision making process suffers from any error of jurisdiction or is violative of any law or rules and violative of the principles of natural justice. In the instant case, it cannot be said that the decision taken by the respondents suffers from any such vice. There is no substance in the submission made on behalf of the petitioners that unlawful constructions which are not against the public interest and hazardous to the safety of occupiers and the residents of multi-storied buildings need not be demolished. On the other hand, the Apex Court in Pratibha Co-operative Housing Society Ltd. and another Vs. State of Maharashtra and others, held:

"We are also of the view that the tendency of raising unlawful constructions and unauthorised encroachments is increasing in the entire country and such activities are required to be dealt with by firm hands. Such unlawful construction was made by the Housing Society in clear and flagrant violation and disregard of F.S.I. and the order for demolition of eight floors had attained finality right upto this Court..............we find no justification to interfere in the order passed by the High Court as well as in the order passed by the Municipal Commissioner dated 13th November, 1990".

A careful reading of the decision would show mat unlawful construction, violating floor-space-index of multi-storied buildings, would itself be hazardous and against the public interest In the case on hand also, the violation of floor-space-index is not a minor one but to an extent of 3000 Sq. feet and such construction cannot be said to be in the ''public interest''.

For the aforesaid reasons, I do not find any merit in the Writ Petition and the same deserves to be dismissed and is accordingly dismissed. No costs.

However, this order would net preclude the 4th respondent- Government to take appropriate decision or the application filed by the petitioners for the relaxation and for grant of necessary permission in accordance with law uninfluenced by any observations made in this order, as this Court has not expressed any opinion with regard to the merits of the application filed by the petitioners which is stated to be pending before the Government. The application may be disposed of as expeditiously as possible.