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Judgment
This Writ Petition has been filed seeking a Writ of Mandamus to
(i) declare the action of the respondent No.2 in permitting the 8th and 9th respondents to use the plot bearing No.373, Jubilee Hills for commercial purposes i.e., for running bar and restaurant contrary to the residential permission granted vide Permit No.1/C18/07304/2021 and File No. 1/c18/04394/2021, as illegal, arbitrary and unconstitutional and consequently direct respondents No.2 and 3 to forthwith
(ii) declare the residential building permit vide Permit No. 1/C18/07304/2021 and File No.1/c18/04394/2021 granted to the 8th and 9th Respondent by the 2nd Respondent to be illegal, arbitrary and to have been passed without following the provisions of GHMC Act and consequently set aside the same.
(iii) declare the inaction of the Respondents No.2 and 3 in not taking any action against the construction activities being undertaken by the Respondents No.8 and 9 in total contravention of the building permit to be illegal and arbitrary.
(iv) declare the action of the Respondents No.5 to 7 in accepting and processing the application for bar/excise and/or granting the excise license to the 8th and 9th Respondent on a residential building permission, and also without considering the orders of this Hon’ble Court in W. P.No.26173 of 2009, as illegal, arbitrary and unconstitutional.
(v) Pass such other or further orders(s) as this Hon’ble Court may deem fit and proper in the circumstances of the case.
Brief facts leading to the filing of this Writ Petition are that petitioners 1 and 2 are owners, possessors and occupiers of the property bearing Plot No.373/A, Road No.22, Jubilee Hills, Hyderabad and the property bearing Plot No.489, Road No.22, Jubilee Hills, Hyderabad respectively, while the 8th respondent is the owner and possessor of the property situated in Plot No.373, Road No.22, Jubilee Hills, Hyderabad since the year 1988. It is submitted that the 8th respondent has been letting out the premises to various persons over different periods of time. It is submitted that the property of the 8th respondent is the first property on Road No.22, Jubilee Hills followed by the property of the 1st petitioner and the property of the 2nd petitioner is opposite to Plot No.373 of the 8th respondent. It is submitted that in the year 2009, the 8th respondent had put up her property to commercial use illegally, against which the petitioners filed W.P.No.26173 of 2009 challenging the action of the official respondents in permitting illegal constructions and authorising illegal conversion of the residential plots for commercial purpose in the residential zone of Jubilee Hills, particularly Road No.22. On 04.12.2009, this Court was pleased to pass an ex parte interim order restraining the unofficial respondents therein from using the premises owned/occupied by them respectively for any purpose other than for residential purpose and also directed the official respondents therein to ensure that such a direction is complied with. On the filing of counters and stay vacate petition by the 8th respondent and her late husband, the Court modified the order vide order dt.01.09.2014 permitting the 8th respondent to use the premises for treatment of customers through Ayurvedic or laser or similar activities in such a way that facilities are not created for overnight stay of the customers. However, it is the case of the petitioners that in spite of such directions of this Court, respondent No.8 is now trying to let out the property to a bar and restaurant which is clear contravention of the orders of this Court. It is submitted that in order to put the premises of respondent No.8 to commercial use, there must necessarily be commercial permission and such commercial permission cannot be granted in a residential area as laid down in regulations, bye-laws and provisions of the GHMC Act. Therefore, this Writ Petition has been filed.
Learned counsel for the petitioner, Sri Tarun G. Reddy, has strongly relied upon the contentions raised in the writ affidavit and also the orders of this Court in W.V.M.P.Nos.4426 of 2009 and 1031 of 2012 in W.P.No.26173 of 2009 dt.01.09.2014.
Sri Sri Raghuram, learned Senior Counsel representing Sri P. Srinivas Rao, learned counsel for the 8th respondent, argued that the 8th respondent had not violated any of the directions of this Court. He submitted that the property of the 8th respondent is on the corner of Road No.22 and Road No.10 and vide G.O.Ms.No.102, Municipal Administration & Urban Development (PLG-III) Department, dated 03.07.2021, Road No.10 has been notified as eligible for commercial use and therefore there is no embargo on respondent No.8 herein for establishing a restaurant and bar. It is submitted that even earlier, as per G.O.Ms.No.363, Municipal Administration and Urban Development Department, dt.21.08.2010, running a bakery was permissible in a residential area and the subject premises was used to run a bakery. It is also submitted that the petitioner made an application to GHMC to change the building plan on 22.02.2021 and the permission was granted on 07.06.2021. It is submitted that in accordance with the said permission only, the premises has been modified and let out to respondent No.9 to run its business and there is no illegality or irregularity committed by respondent No.8.
Learned counsel for the petitioner has drawn the attention of this Court to the agreement between respondents 8 and 9 to demonstrate that the intention of the petitioner was always to run a restaurant and bar even prior to the declaration of Road No.10 as commercial zone area and therefore, according to him, the contentions raised by respondent No.8 in the counter affidavit are nothing but after thought.
The official respondents 2 and 3 have also filed counter confirming that Road No.10 of Jubilee Hills has been declared as commercial zone vide G.O.Ms.No.102 dt.03.07.2021 and respondents 2 and 3 are collecting property tax for the said building under commercial category only. It is also confirmed that on the representation of the petitioner dt.27.11.2021, the permission for commercial usage in commercial zone was granted and the office had already collected Rs.15,74,000/- towards the impact fees and 33% of compounding fees equivalent to Rs.5,19,562/- from respondent No.8 and therefore, the unofficial respondents can use this building for commercial usage of hotels. Therefore, the official respondents submitted that the Writ Petition is not maintainable.
Having gone through the material on record, this Court finds that the subject property is undisputedly on Road No.10 as well as Road No.22. Road No.10 is now declared as a commercial road and hence there is no restriction/prohibition in establishing commercial establishments in the properties facing Road No.10 after obtaining necessary permissions. From the material on record, it is noticed that though respondent Nos.8 and 9 have entered into an agreement to carry on the business of restaurant and bar in the property of respondent No.8 before even road No.10 was notified as commercial area, they have not started the business until relevant permissions have been granted by respondents 2 and 3. Respondent No.8 has been carrying on necessary changes to the building only after obtaining permission from the concerned authorities. Therefore, after notification of Road No.10 as commercial zone, respondents 8 and 9 may carry on commercial activity. Respondents 2 and 3 are however directed to ensure that the entrance to the premises which is used for commercial purposes is only from Road No.10 and not from Road No.22 which is a road leading to residential area.
The Writ Petition is accordingly dismissed. No order as to costs.
Pending miscellaneous petitions, if any, in this Writ Petition shall also stand dismissed.