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Judgment
Heard Mr. T.Srikanth Reddy, learned Government Pleader for Home appearing for the appellants and Mr. I.Ramesh, learned counsel for the respondents.
This intra-court appeal has been preferred by the appellants assailing the legality and validity of the order of the learned Single Judge dated 16.03.2017 passed in W.P.No.5734 of 2017 filed by the respondents.
Respondents had preferred the related writ petition assailing the order dated 09.02.2017 refusing to grant No Objection Certification (NOC) for the building constructed by the respondents.
Facts leading to filing of the writ petition were summed up by the learned Single Judge in the following manner:
“2. All the petitioners are owners of various extents of lands totally admeasuring Ac.2.16 ¼ Gts., situated in Sy.Nos.51, 52, 54 and 61 of Nanakramguda Village, Serilingampally Mandal, Ranga Reddy District, having purchased the same under five registered sale deeds bearing Nos.7096/2012, 7097/2012, 7098/2012, 7099/2012 and 2728/2010. Petitioners 1 to 6 agreed to share the constructed area out of total land and accordingly prepared a common plan so as to raise multi-storied building. They obtained Feasibility Certificate from Hyderabad Metropolitan Water Supply and Sewerage Board on 06.05.2016 and also obtained Soil Testing Certificate, No Objection Certificate from Airport Authority of India on 11.04.2016. They have also obtained Environment Clearance Certificate on 20.06.2016 and applied for Provisional No Objection Certificate from the 2nd respondent on 05.05.2016. The plan along with the certificates was submitted to the Greater Hyderabad Municipal Corporation (for short, ‘GHMC’) on 04.08.2016. However, the 2nd respondent returned the plan submitted by the petitioners, for the rectification of advance in fire safety measures for their re-submission by order dated 10.06.2016. The same was challenged by the petitioners in Writ Petition No.1680 of 2017 and the said writ petition was disposed of on 18.01.2017 remanding the matter to the 2nd respondent with the following observations:
“3. R.7(a)(vi) provides for obtaining a prior No Objection Certificate (NOC) from the Andhra Pradesh State Disasters Response & Fire Services Department and does not give any guidance with regard to the parameters that have to be observed by the said department and when it is read along with R.7(c), the learned counsel for the petitioners submits that they have complied with R.7(c) as the proposed structure was a pyramidal structure and the minimum 9 metres open space was left.
Since this Court is satisfied that there was misunderstanding of the application of the provisions in the instant case, the impugned order is treated as a notice to the petitioners and in the circumstances, petitioners are given liberty to submit their explanation bringing out to the notice of the second respondent the relevant provisions of the Rules and their compliance in the instant case. The second respondent is directed to consider the same and take appropriate action in accordance with law within a period of two weeks from the date of receipt of explanation.”
Accordingly, the petitioners submitted an application on 24.01.2017, but as the second respondent issued proceedings on 09.02.2017 rejecting the request for issuance of provisional No Objection Certificate, the present writ petition is filed.”
Learned Single Judge considered the impugned order dated 09.02.2017 and noted that as per the technical committee, the building in question is a stepped high rise building with open space in terms of Rule 7(c) of the Andhra Pradesh Building Rules, 2012, adopted by the State of Telangana, wherein view was taken that in a building having pyramidal structure, not only 9 metres of open space is required to be maintained at the ground level, additional space of 1 metre should be maintained in respect of every five upper floors or 15 metres height of the building. After adverting to the impugned order dated 09.02.2017, learned Single Judge took the view that the setback to be maintained is 9 metres at the ground level and for every five floors upwards, an additional 1 metre of open space was required to be maintained. Learned Single Judge found the impugned order dated 09.02.2017 to be incompatible to G.O.Ms.No.75, dated 17.11.2015, whereafter the writ petition was allowed in the following manner:
“8. The minutes disclose that the Government issued G.O.Ms.No.75, Home (Legal) Department, dated 17.11.2015, separating NBC and other laws for the time being in force regulating such purpose or activity into two separate categories and clarified that the setbacks and heights will be taken not from the NBC, but from the Telangana State Building Byelaws, which are the Rules made under various Municipal and Urban Area Acts. It was also stated that the fire services department shall no longer refer to the NBC for setbacks & heights. Setbacks & heights will be complied from G.O.Ms.No.168, Municipal Administration and Urban Development (M) Department, dated 07.04.2012, or any other GO that might be issued in future.
Though the learned Government Pleader pointed out that the said minutes applied to unauthorised structures, the purport of the G.O.Ms.No.75, Home (Legal) Dept., dated 17.11.2015 as extracted in the minutes clearly show that the Building Rules would prevail over the NBC for the set backs and heights. In view of this, when the petitioner complied with G.O.Ms.No.168, dated 07.04.2012, the reference to the provisions of the Telangana State Fire Service Act and the NBC is of no avail. Rule 7(c) of the G.O.Ms.No.168, dated 07.04.2012, deals with both stepped type as well as pyramidal type building and requires maintenance of same width of all around space for the first five floors. When the petitioners propose to maintain 9 metres, it would be a sufficient compliance with the said Government Order.
In view of the above, the impugned order, dated 09.02.2017, issued by the 2nd respondent is set aside and the 2nd respondent is directed to issue a Provisional No Objection Certificate under G.O.Ms.No.168, dated 07.04.2012, within a period of two (02) weeks from the date of receipt of a copy of this order, in order to enable the petitioners to apply to the GHMC for appropriate permission for construction of the proposed building.
Accordingly, the Writ Petition is allowed.”
In the course of the hearing today, learned Government Pleader has fairly placed before us G.O.Ms.No.168, dated 07.04.2012, containing the Andhra Pradesh Building Rules, 2012, as adopted by the State of Telangana. Rule 7 of the said Rules deals with requirements for high rise buildings.
In the instant case, we are concerned with Rule 7(c) of the aforesaid rules which deals with stepped type or pyramidal type building. Relevant provision of the aforesaid rules is as under:
“(c) “Stepped Type” or “Pyramidal Type” Building: Such type of High Rise Building blocks may be allowed for heights above 30m with the following open space requirements:
(i) At Ground level: Minimum 9m all round open space for the first five floors.
(ii) At Upper floors: Increase of 1m all round open space or more, for every 5 upper floors or 15 m height or part thereof, over and above the ground level open space of minimum 9m.”
On due analysis, we are of the view that a literal interpretation of the aforesaid rules would go to show that the intent of the rule making authority is to ensure that in the case of high rise buildings there should be minimum 9 metres open space at the ground level for the first five floors. For every additional five floors thereafter there shall be increase of one metre open space additionally from the stage where the upper floors are constructed.
In that view of the matter, we do not find any error or infirmity in the view taken by the learned Single Judge to warrant any interference.
We may mention that in the proceedings held on 13.04.2017, this Court while declining to grant stay had made it clear that any action taken pursuant to the order of the learned Single Judge would be subject to further orders in the appeal.
For the reasons indicated above, we are not inclined to entertain the appeal.
Order passed on 13.04.2017 is made absolute.
Writ appeal is dismissed.
Miscellaneous applications pending, if any, shall stand closed. However, there shall be no order as to costs.