Kathi Saraswathi Devi vs State Of Telangana

This Writ Petition is filed seeking a Writ of Mandamus declaring the action of the 3rd respondent in issuing notice under Section 180(1) of the Telangana Municipalities Act, 2019 in proceedings No.G1/UC/01/2020 dt.28.10.2020 for demolition of the petitioner’s RCC building consisting of ground + 3 floors at Municipal House No.19-11-310/2, Vishwanadha Colony, Street No.1, Shambhunipet, Warangal Urban, as illegal and arbitrary.

It is the case of the petitioner that she has purchased a plot bearing No.82 of an extent of 323.27 square yards equivalent to 268.09 square metres from one Rayabharapu Satyanarayana vide registered sale deed bearing Document No.8391 of 2006 dt.18.08.2006 registered in the Joint Sub-Registrar’s office, Warangal and since then she is in peaceful possession and enjoyment of the same. It is submitted that the petitioner has been regularly paying the property tax till date after assignment of house number to the petitioner’s property as H.No.19-11-310/2. It is submitted that the petitioner had applied for a building permission on 07.03.2011 vide inward No.TP/6709 (64/6709/2011) B.A. No.1624 along with all the required documents and also on paying the usual charges including betterment charges, for construction of ground floor. However, no building permission was granted and therefore the petitioner after waiting for a period of 6 months, constructed the ground floor on the premise that if the building permission is not granted within 60 days, there is deemed permission. It is submitted that in the year 2019, the petitioner wanted to construct 2 upper floors on the ground floor already constructed and accordingly applied for building permission vide Application No.CN/3006/2019/6507 dt.23.09.2019 by paying the requisite fee by enclosing all the relevant documents. For this application also, no permission was granted nor was any intimation given to the petitioner rejecting the permission. Therefore, after waiting till December, 2019, the petitioner started erecting pillars and slab. It is stated that since the petitioner made a complaint to the respondents on 16.03.2020 about the illegal occupation of the road by some of the habitants of the colony, the persons against whom the petitioner and her husband have complained, have instigated the municipal authorities, due to which the respondents issued the impugned notice to the petitioner under Section 180(1) of the Telangana Municipalities Act, 2019 on the ground that the petitioner has constructed her house without applying for or obtaining the building permission.

According to the learned counsel for the petitioner, Sri Rajeswara Rao Garige, the petitioner had made requisite applications to the concerned authorities from time to time and since no intimation rejecting the applications has been received by the petitioner and applying the deeming provisions, the petitioner has proceeded to make constructions and the issuance of notice under Section 180(1) of the Telangana Municipalities Act, 2019 by the respondents at this stage is illegal and arbitrary. He has also filed photographs of the colony showing that the colony is filled with houses and no notice has been issued to any other household except the petitioner.

Learned counsel for the respondents, Ms. Pingali Lakshmi, on the other hand, submits that the petitioner, after making the application in the year 2011, should have issued a notice to the respondents for commencement of the construction and since no such notice has been issued, the construction made in 2011 itself is illegal and unauthorised. She also submitted that the plot of the petitioner is earmarked as park in the draft master plan and therefore, permission could not have been granted to the petitioner to make any construction in the said plot. She also submitted that the building application dt.07.03.2011 has been scrutinised and was refused by the Corporation on 13.04.2011 itself as the subject plot was earmarked for park use in the approved master plan, 1971 and that the petitioner has also failed to submit the plan in accordance with the rules envisaged under the then G.O.Ms.No.302, Municipal Administration, dt.15.04.2008. A copy of the endorsement in the register prepared for applications for house construction is filed before this Court as an annexure to the counter affidavit. Therefore, according to her, the petitioner has constructed ground + two floors unauthorisedly and therefore there is no illegality in issuance of the notice dt.28.10.2020 for demolition of the unauthorised construction. Further, she also placed reliance upon the judgment of the Hon’ble Supreme Court in the case of Purushottam Vs. State of Karnataka and others (2014) 3 SCC 721 for the proposition that where the land is reserved for a particular civic amenity, it cannot be transferred even for any other civic amenity without changing the development plan. She also placed reliance upon a judgment of this Court in W.P.No.20398 of 2021 and batch dt.13.12.2021 for the proposition that until the respondent authorities pass orders within the time prescribed on the explanations submitted by the petitioner, the petitioner shall not proceed with any type of construction in his subject land.

After hearing both the parties and considering the documents filed by them and the relevant provisions of law and also the additional documents filed by the writ petitioner, it is seen that in the colony in which the petitioner is residing and is proposing to make further constructions, permissions have been given to the other residents for construction of ground + one upper floor. It is only the petitioner who has been denied the permission to make construction of ground + 2 floors. Further, as pointed out by the learned counsel for the petitioner, the petitioner had made application in 2011 for construction of ground floor and since it was not rejected, the petitioner has proceeded to make the construction. As pointed out by the learned counsel for the respondents, the petitioner was required to issue notice to the respondents before commencement of construction. However, even the respondents have not taken action on such construction till 2020. Though the learned standing counsel submits that the application of the petitioner was rejected in the year 2011 itself and in proof thereof she has filed copy of endorsement made in the register for applications for house construction, it is not evident therefrom that the same was communicated to the petitioner vide any proceedings. There is no averment in the counter affidavit also to this effect. As per Section 437 of the GHMC Act, if no communication is received from the respondent authority, it is deemed permission and since rejection has not been communicated to the petitioner, the petitioner has rightly proceeded with the construction. Further, the contention of the respondents that the plot of the petitioner is earmarked as park in the draft master plan has also not been confronted to the petitioner. Even the impugned notice dt.28.10.2020 also does not mention anything about the plot of the petitioner being earmarked as park in the draft master plan, but the same is only stated in the counter affidavit filed by the respondents. It is settled principle that the respondents cannot improve the impugned order by making averments in the counter affidavit.

Therefore, the impugned notice dt.28.10.2020 is set aside and the respondents are directed not to take any coercive steps against the petitioner without following the due process of law, i.e., without issuing a show-cause notice and disposing of the explanations, if any, of the petitioner in accordance with law.

The Writ Petition is accordingly disposed of. No order as to costs.

Pending miscellaneous petitions, if any, in this Writ Petition shall stand closed.